Englehardt v. Town of Hempstead

• Court: New York Supreme Court — Appellate Division
• Citation: Englehardt v. Town of Hempstead, 529 N.Y.S.2d 523, 141 A.D.2d 601 (N.Y. App. Div. 1988)
• Decision Date: 13 June 1988
• Parties: George ENGLEHARDT, Respondent, v. TOWN OF HEMPSTEAD, Appellant.

Page 523

529 N.Y.S.2d 523

141 A.D.2d 601

George ENGLEHARDT, Respondent, v. TOWN OF HEMPSTEAD, Appellant.

Supreme Court, Appellate Division Second Department.

June 13, 1988.

Mulholland, Minion & Roe, Williston Park (Michael J. Roe, of counsel), for appellant.

Lester H. Hirsh, Lynbrook, for respondent.

Before MOLLEN, P.J., and MANGANO, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Ain, J.), dated October 23, 1986, which denied its motion for summary judgment.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff alleges he sustained injuries when he fell because of a defective condition existing in the boardwalk located at a dock operated and owned by the Town of Hempstead and maintained as a public facility open free of charge. The defendant alleges that the plaintiff is precluded from maintaining this action because there was no prior written notification of the alleged defect. Code of the Town of Hempstead (ch. 6) provides that:

"No civil action shall be maintained against the Town of Hempstead or Town Superintendent of Highways for damages or injuries to persons or property sustained by a reason of any highway, bridge or culvert being defective * * * [or] any defective parking field, beach area, swimming or wading pool or pool equipment, playground or playground equipment, skating rink, or park property, no matter where situated * * * [or] any defect whatsoever in its traffic signs, sidewalks, walkways, footpaths or bicycle pathways * * * [unless prior] written notice of said defect [or obstruction] causing the injuries or damages was actually given to the Town Clerk or Town Commissioner of Highways".

Legislative enactments requiring prior written notification cannot be expansively read ( see, Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 222 N.E.2d 376). "However, that rule does not require that the words used be given an artificial, forced or unnatural meaning" ( see, Stratton v. City of Beacon, 91 A.D.2d 1018, 1019, 457 N.Y.S.2d 893). The ordinance expressly relates to walkways and footpaths which, accorded their ordinary meanings, would include a boardwalk ( see, Goldstein v. City of Long Beach, 28 A.D.2d 558, 280 N.Y.S.2d 272). In addition, a boardwalk over which the public has a general right of...