Ferris v. County of Suffolk

• Decision Date: 15 January 1992
• Parties: Erna FERRIS, Respondent, v. COUNTY OF SUFFOLK, Defendant, Town of Brookhaven, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 436

579 N.Y.S.2d 436

174 A.D.2d 70

Erna FERRIS, Respondent, v. COUNTY OF SUFFOLK, Defendant, Town of Brookhaven, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 15, 1992.

Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Michael G. Mehary, of counsel), for appellant.

Lupow & Bezack, Huntington Station (Stephen Lupow, on the brief), for respondent.

Before KUNZEMAN, J.P., and HARWOOD, EIBER and BALLETTA, JJ.

BALLETTA, Justice.

There is no uniformity in notice laws involving actions against municipalities. There are separate and different notice requirements in the County Law, Town Law, city charters, and various local laws. Municipal tort liability and the applicability of prior written notice statutes is a recurring issue, and this case presents a scenario which requires clarification of existing case law.

The plaintiff herein was injured while she was walking with three other people, two abreast of her and one behind her, on the Fire Island Ocean Walk boardwalk. She claimed that a board in the walkway was loose so that when one of her friends stepped on the loose plank causing it to lift up, she simultaneously stepped into the gap left by the uplifted board, breaking her ankle. The Town moved for summary judgment dismissing the complaint insofar as it is asserted against it on the ground that the plaintiff had failed to plead and prove prior written notice of the claimed defect as a condition precedent to bringing a civil suit against it. The Supreme Court denied the Town's motion, on the ground that there was a question of fact as to whether the defective area was inspected or worked upon which would then bring this case within a narrow exception to the prior written notice requirement. We disagree.

Town Law § 65-a provides for "liability of Towns and Town superintendents of highways in certain actions". Subdivision 1 is specifically addressed to "injuries to persons or property sustained by reason of any highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed". Although this subdivision involving highways requires written notice of a defect as a predicate for the commencement of a civil action, there is further statutory authority within the subdivision which permits the commencement of a civil action where "such defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence"--in essence, allowing a civil action where there is constructive notice. Town Law § 65-a(2), dealing with civil actions to recover damages for injuries to persons or property sustained by reason of sidewalk defects, also requires written notice as a prerequisite to commencement of any civil action, but differs from subdivision 1 in that it contains no language which allows the commencement of a civil action if the condition has existed for such a long period that the town should have discovered and remedied the defect. In short, there is no constructive notice provision in subdivision 2. The Legislature has clearly fashioned a distinction between highways and sidewalks in towns by omitting the constructive notice provision with respect to defective sidewalks. A boardwalk is generally for pedestrian use, and therefore is similar in nature to a sidewalk (Donnelly v. Village of Perry, 88 A.D.2d 764, 765, 451 N.Y.S.2d 494; Goldstein v. City of Long Beach, 28 A.D.2d 558, 280 N.Y.S.2d 272).

Brookhaven Town Code § 84-1 requires prior written notice as a condition precedent to bringing an action against the Town for personal injuries arising from the defective condition of "any * * * sidewalk, crosswalk or other property or lands of the Town of Brookhaven". The ordinance is equally applicable to the boardwalk herein (see, Englehardt v. Town of Hempstead, 141 A.D.2d 601, 529 N.Y.S.2d 523; Kotler v. City of Long Beach, 44 A.D.2d 679, 353 N.Y.S.2d 800, affd. 36 N.Y.2d 774, 368 N.Y.S.2d 842, 329 N.E.2d 673). Such a prior written notice law insulates the Town from liability for defects which are the result of nonfeasance (see, Barry v. Niagara Frontier Tr. System, 35 N.Y.2d 629, 364 N.Y.S.2d 823, 324 N.E.2d 312; Pittel v Town of Hempstead, 154 A.D.2d 581, 546 N.Y.S.2d 411), in that its purpose is "to exempt the [Town] from liability for holes and breaks of a kind which do not immediately come to the attention of the [Town] officers unless they are given actual notice thereof" (Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 366, 275 N.Y.S.2d 505, 222 N.E.2d 376; see also, Hughes v. Jahoda, 75 N.Y.2d 881, 554 N.Y.S.2d 467, 553 N.E.2d 1015; Levine v. Sharon, 160 A.D.2d 840, 842, 554 N.Y.S.2d 274). Absent prior written notice, the Town may be held responsible only for affirmative acts of negligence (see, Zinno v. City of New York, 160 A.D.2d 795, 554 N.Y.S.2d 66; Parella v. Levin, 111 A.D.2d 750, 489 N.Y.S.2d 780).

In support of its motion for summary judgment, the Town tendered evidentiary proof in admissible form, consisting of an affidavit of the Town Clerk, which indicated that the Town had no record of any written notice with respect to the subject defect in the boardwalk. It was, therefore, incumbent upon the plaintiff, in opposition to the Town's motion, to come forward with sufficient proof to create a triable issue of fact (see, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298; Goldston v. Town of Babylon, 145 A.D.2d 534, 535 N.Y.S.2d 748; Zigman v. Town of Hempstead, 120 A.D.2d 520, 501 N.Y.S.2d 718). In the instant case, the plaintiff failed to come forward with proof that prior written notice of the loose plank had been given to the Town Clerk.

Moreover, there is no proof that the Town was affirmatively negligent. Indeed, the only evidence addressing the issue of affirmative negligence was an engineer's report which stated that it appeared that galvanized, rust-resistant nails had not been used exclusively on the boardwalk. However, this report, based upon an examination of the boardwalk made some three to four months after the incident, did not indicate any negligence on the part of the Town, especially in the face of the unequivocal testimony of the Town Maintenance Foreman that prior to the date of the accident, only hot-tipped galvanized nails were used, and that sometimes other people, such as surveyors, put their own nails in the boards.

In denying the Town's motion for summary judgment, the Supreme Court relied on a narrow exception to the statutory prior written notice requirement that "when a municipality has or should have knowledge of a defective or dangerous condition because it either has inspected or is performing work upon the subject area shortly before the accident, an exception to statutory prior written notice requirements may exist" (Klimek v. Town of Ghent, 114 A.D.2d 614, 615, 494 N.Y.S.2d 453 [emphasis added]; see also, Kirschner v. Town of Woodstock, 146 A.D.2d 965, 967, 536 N.Y.S.2d 912; Holt v. County of Tioga, 95 A.D.2d 934, 936, 464 N.Y.S.2d 278; Blake v. City of Albany, 63 A.D.2d 1075, 405 N.Y.S.2d 832, affd. 48 N.Y.2d 875, 424 N.Y.S.2d 358, 400 N.E.2d 300). However, these cases are distinguishable and are inapplicable to the facts herein. ^*

In the earliest of these cases, Blake v. City of Albany, supra, the plaintiff was injured when her car struck a hole which had been created by a broken or missing catch basin cover. At the time of the accident, there was ongoing construction on the street pursuant to a city permit, and a city inspector would check the project "practically every day" to ensure that the street was safe for the passage of other users. Further, a resident who lived nearby and who used the street on a daily basis testified that he had been aware for at least a month and a half before the accident that the catch basin was six to eight inches below grade. The court held that under these circumstances it was "obvious that the city's inspectors should have discovered the defect long before plaintiff's mishap, and, accordingly, the jury was justified in concluding that the city had, at minimum, constructive notice of the dangerous condition" (Blake v. City of Albany, supra, at 1076, 405 N.Y.S.2d 832). The court also rejected the city's argument that the prior written notice ordinance was applicable:

"Such notice provisions are enacted to insure that a municipality has a 'reasonable opportunity to cure defective conditions, the existence of which it could not be expected to know absent some sort of positive apprisal' (Jagoda v. City of Dunkirk, 43 A.D.2d 795, 796 . Here, given the facts set forth above and, most notably, the almost daily inspection of the area by the city, there was plainly no need for any apprisal and the city had a nondelegable duty to maintain Trinity Place in a safe condition for the traveling public" (Blake v. City of Albany, supra, at 1076, 405 N.Y.S.2d 832).

Blake v. City of Albany, supra, is clearly inapplicable. The notice provisions of Town Law § 65-a(2) and the Brookhaven Town Code are controlling here. Thus, constructive notice is inappropriate as a predicate for the commencement of a civil action. Further, the defect in question in Blake was on a well-traveled portion of a public highway, where there was almost daily inspection. The defect was patent and the City was charged with the responsibility of seeing that which was there to be seen. The boardwalk in this case had a latent defect which was not readily observable. Thus, the fact that inspectors walked the boardwalk from time to time does not raise an issue of fact as to whether the Town had actual notice of the defect.

In Klimek v. Town of Ghent, 114 A.D.2d 614, 494 N.Y.S.2d 453, supra, the infant plaintiff was injured when the tractor he was operating...