Farnsworth v. Village of Potsdam

• Decision Date: 09 January 1997
• Parties: Eleanor P. FARNSWORTH, Appellant-Respondent, v. VILLAGE OF POTSDAM, Respondent, and David W. Leach Jr. et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 748

651 N.Y.S.2d 748

228 A.D.2d 79

Eleanor P. FARNSWORTH, Appellant-Respondent, v. VILLAGE OF POTSDAM, Respondent and David W. Leach Jr. et al., Respondents-Appellants.

Supreme Court, Appellate Division Third Department.

Jan. 9, 1997.

Cappello & Linden (Francis P. Cappello, of counsel), Potsdam, for appellant-respondent.

Slye & Burrows (Donald S. Di Benedetto, of counsel), Watertown, for respondents-appellants.

Conboy, McKay, Bachman & Kendall, L.L.P. (Stephen W. Gebo, of counsel), Watertown, for respondent.

Before MERCURE, J.P., and YESAWICH, PETERS, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Cross appeals from an order of the Supreme Court (Demarest, J.), entered February 6, 1996 in St. Lawrence County, which granted a motion by defendant Village of Potsdam for summary judgment dismissing the complaint against it and denied a cross motion by defendants David W. Leach Jr. and Susan R. Leach for summary judgment dismissing the complaint against them.

This action arises out of plaintiff's May 13, 1993 fall on a sidewalk in front of the residence owned by defendants David W. Leach Jr. and Susan R. Leach (hereinafter the homeowners) in the Village of Potsdam, St. Lawrence County. Plaintiff alleges that her fall was caused by the rough and irregular surface of the sidewalk. Defendant Village of Potsdam moved for summary judgment and the homeowners cross-moved for summary judgment. Supreme Court granted the Village's motion, concluding that the Village had not received prior written notice of the allegedly dangerous condition of the sidewalk. Supreme Court denied the homeowners' cross motion on the grounds that the homeowners owned the property upon which the sidewalk was located and that principles of law regarding abutting landowners were simply inapplicable. Plaintiff appeals from that portion of Supreme Court's order which granted the Village's motion for summary judgment, and the homeowners appeal from the order in its entirety.

Supreme Court correctly granted the Village's motion for summary judgment dismissing the complaint against it. Pursuant to Village Law § 6-628 and Potsdam Village Code § 145-1, prior written notice is a condition precedent to maintaining a cause of action against the Village for injuries arising out of a sidewalk defect, and it must be pleaded and proved (see, Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374; Misek-Falkoff v. Village of Pleasantville, 207 A.D.2d 332, 333, 615 N.Y.S.2d 422; Giganti v. Town of Hempstead, 186 A.D.2d 627, 628, 588 N.Y.S.2d 413). In this case, plaintiff concededly did not give prior notice in accordance with these provisions. Plaintiff argues, however, that in 1986 or 1987 the Village inspected all of its sidewalks in order to discover defects, and that a report drafted by the then-Superintendent of Public Works noted that the sidewalk where plaintiff was to fall six years later consisted of "uneven" sandstone. Although this report was filed with the Department of Public Works, there has been no showing that the report was ever brought to the attention of the Village Clerk, as required both by the Village Law and the Potsdam Village Code. This is fatal to plaintiff's claim (see, Misek-Falkoff v. Village of Pleasantville, supra, at 333, 615 N.Y.S.2d 422; Conlon v. Village of Pleasantville, 146 A.D.2d 736, 537 N.Y.S.2d 221).

The decision in Harrington v. City of Plattsburgh, 216 A.D.2d 724, 627 N.Y.S.2d 838, is not to the contrary. In that case, the Plattsburgh City Code required prior written notice to the Superintendent of Public Works. A survey of City sidewalks was performed by the Department of Public Works and was filed with the Mayor and the Common Council, but not with the Superintendent. Because the survey relied upon by the plaintiff was in fact undertaken by the Department of Public Works, we found that the requirement of notice to that Department had been satisfied. Here, however, the report was prepared by the Superintendent of Public Works and filed with the Department of Public Works. There has been no showing that the Village Clerk, who was required to receive notice under the Potsdam Village Code, had either actual or constructive knowledge of the content of the 1986-1987 report.

Similarly, although an exception to the prior written notice requirement has been recognized when a municipality has or should have knowledge of a defective condition because it either inspected or performed work upon the subject area shortly before the accident (see, Jackson v. City of Mount Vernon, 213 A.D.2d 892, 892-893, 623 N.Y.S.2d 658, lv. denied 85 N.Y.2d 812, 631 N.Y.S.2d 288, 655 N.E.2d 401; Giganti v. Town of Hempstead, supra, at 628, 588 N.Y.S.2d 413; Klimek v. Town of Ghent, 114 A.D.2d 614, 615, 494 N.Y.S.2d 453), that exception is clearly inapplicable here, where the inspection occurred at least six and possibly seven years before the accident. In any event, we are additionally not convinced that an inspection noting the presence of uneven sandstone would qualify as notice of a dangerous or defective condition for purposes of the prior written notice requirement.

We find that Supreme Court erred, however, in denying the homeowners' motion for summary judgment. It is a well-established principle of law that a sidewalk is part of the public street or highway (see, Donnelly v. Village of Perry, 88 A.D.2d 764, 765, 451 N.Y.S.2d 494), and that the duty of maintaining the sidewalks in a safe condition belongs to the municipality (see, Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896; Tremblay v. Harmony Mills, 171 N.Y. 598, 601-602, 64 N.E. 501; City of Rochester v. Campbell, 123 N.Y. 405, 411, 25 N.E. 937; MacKain v. Pratt, 182 A.D.2d 967, 968, 582 N.Y.S.2d 556; Blais v. St. Mary's of Assumption R.C. Church of Waterford, 89 A.D.2d 653, 453 N.Y.S.2d 117).

A "special use" exception to this general rule has been recognized in cases where the sidewalk was constructed in a special manner for the benefit of the property owner (see, Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470; Little v. City of Albany, 169 A.D.2d 1013, 565 N.Y.S.2d 291; Kiernan v. Thompson, 137 A.D.2d 957, 958, 525 N.Y.S.2d 380; Santorelli v. City of New York, 77 A.D.2d 825, 430 N.Y.S.2d 618). There is no evidence in the record that this exception would apply here. A second exception has been recognized where a statute, ordinance or municipal charter specifically imposes upon a property owner a duty to repair the sidewalk and provides that a breach of that duty will result in liability in favor of any third party who may be injured by such breach (see, Hausser v. Giunta, supra, at 453, 646 N.Y.S.2d 490, 669 N.E.2d 470; Dufrane v. Robideau, 214 A.D.2d 913, 914, 626 N.Y.S.2d 292; Conlon v. Village of Pleasantville, supra, at 737, 537 N.Y.S.2d 221; Kiernan v. Thompson, supra, at 958, 525 N.Y.S.2d 380). This exception similarly does not apply. Potsdam Village Code § 145-5.1(A) provides that building owners have an obligation to keep sidewalks in good repair, but contains no provision imposing liability for injuries sustained by third parties.

Plaintiff seeks to draw a distinction between the cases cited above and the instant case based upon the fact that the homeowners' deed description in this case indicates that their property line is located in the center of the street and therefore encompasses the sidewalk. Notwithstanding our dictum in Bentley v. City of Amsterdam, 170 A.D.2d 725, 565 N.Y.S.2d 533, we find this line of reasoning unpersuasive. It is not unusual in New York for deed descriptions to encompass land that is otherwise part of a public thoroughfare and therefore subject to an easement on the part of the municipality (see,...