Ebert v. Incorporated Village of Garden City

• Court: New York Supreme Court
• Writing for the Court: BERNARD S. MEYER
• Citation: Ebert v. Incorporated Village of Garden City, 21 Misc.2d 607, 196 N.Y.S.2d 878 (N.Y. Sup. Ct. 1960)
• Decision Date: 25 January 1960
• Parties: Lyna EBERT, Plaintiff, v. INCORPORATED VILLAGE OF GARDEN CITY, Defendant.

Page 878

196 N.Y.S.2d 878

21 Misc.2d 607

Lyna EBERT, Plaintiff, v. INCORPORATED VILLAGE OF GARDEN CITY, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Jan. 25, 1960.

William J. White, Hempstead, for plaintiff.

Clarence W. Williamson, Jr., Lynbrook, for defendant.

BERNARD S. MEYER, Justice.

This motion to dismiss the complaint turns on whether a municipal parking field is a 'street, highway, bridge, culvert, sidewalk or cross-walk' within the meaning of Section 341-a of the Village Law. Plaintiff alleges that her injury was caused by falling in 'a dirt obscured, iced-over hole and depression' in a parking field maintained by defendant Village and that the Village had actual and constructive notice of the hole and failed to repair it. She does not plead the written notice that Section 341-a requires (Skelly v. Village of Port Chester, 6 A.D.2d 717, 174 N.Y.S.2d 562).

While Section 341-a is in derogation of the common law and is, therefore, to be strictly construed, that rule does not require that the words used be given an artificial, forced or unnatural meaning. In People v. County of Westchester, 282 N.Y. 224, 228, 26 N.E.2d 27, 29, the Court of Appeals quoted with approval from Elliott on Roads and Streets as follows: 'If a way is one over which the public have a general right of passage, it is, in legal contemplation, a highway, * * *.' Matter of Mayor, etc., of City of New York, 135 N.Y. 253, 260, 31 N.E. 1043, 1044 and Mullen v. Fayette, 274 App.Div. 527, 529, 85 N.Y.S.2d 64, 67 set forth similar definitions, as does Rhyne, Municipal Law, 413. Webster's New International Dictionary defines 'highway' as follows 'A main road or thoroughfare; hence, a road or way open to the public, including in the broadest sense of the term ways upon water as well as upon land. * * * In its general sense, however, it is used to include any way, of whatever nature, which the law makes open to use of all to pass, whether a carriageway, horseway, footway, or waterway, and whether a thoroughfare, a public bridge, or a cul-de-sac.'

While a municipal parking field is, as the word 'parking' implies, primarily a place where vehicles are left stationary and unattended, it is essential to the use for which it is provided that both cars and pedestrians have passageway on and through it. Whatever the rule may be with respect to fields in which parking is allowed only by permit (see Weinstein v. McKenzie, 177 Misc. 451, 30 N.Y.S.2d 733; People v. Kraushaar, 195 Misc. 487, 89 N.Y.S.2d 685; People ex rel. Village of Larchmont v. Gilbert, Co.Ct., 137 N.Y.S.2d 389, n. o. r.), the complaint does not allege that any permit was required or obtained. The field in question is, therefore, 'one over...