Flynn v. Town of North Hempstead

• Court: New York Supreme Court
• Writing for the Court: ARTHUR D. SPATT
• Citation: Flynn v. Town of North Hempstead, 451 N.Y.S.2d 352, 114 Misc.2d 125 (N.Y. Sup. Ct. 1982)
• Decision Date: 25 May 1982
• Parties: Kathleen FLYNN and John F. Flynn, Plaintiffs, v. TOWN OF NORTH HEMPSTEAD and Incorporated Village of New Hyde Park, Defendants.

Page 352

451 N.Y.S.2d 352

114 Misc.2d 125

Kathleen FLYNN and John F. Flynn, Plaintiffs, v. TOWN OF NORTH HEMPSTEAD and Incorporated Village of New Hyde Park, Defendants.

Supreme Court, Special Term Nassau County, Part I.

May 25, 1982.

William J. Steinbrecher, P. C., Garden City, for plaintiffs.

Rosa & McManus, New York City, for defendant Inc. Village of New Hyde Park.

Angelo J. Mangia, Town Atty., Manhasset, for defendant Town of North Hempstead.

MEMORANDUM

ARTHUR D. SPATT, Justice.

The issue presented is whether a fallen metal sign post lying across a sidewalk which the defendant Town of North Hempstead has the duty to maintain, is a "defect in its sidewalk" so as to require prior "written notice" within the provisions of Town Law § 65-a(2).

Relief Requested

This is a motion by defendant Town of North Hempstead ("Town") for an order granting leave to reargue a prior motion by said defendant for summary judgment and, upon such reargument, for an order granting summary judgment dismissing the complaint.

Background and Contentions

In a prior order dated January 21, 1982, this Court denied the Town's motion for summary judgment on the following ground:

"In this case, the defendant Town has the duty, pursuant to Highway Law § 140(18) to maintain the sidewalk adjacent to Jericho Turnpike, a state highway. This Court cannot determine, as a matter of law, on these papers, whether the Town exercised reasonable care in the maintenance of the sidewalk in question as a result of a fallen sign post. This question is a material issue of fact to be resolved at trial."

The basis for this motion for reargument is that on the original motion for summary judgment, the Town "omitted to direct the Court's attention to ... Town Law § 65-a subd. 2" which requires prior written notice of a defect in the sidewalk. In addition, the Town states that the case relied upon by the Court, namely, Kedenberg v. Town of North Hempstead, 75 Misc.2d 892, 349 N.Y.S.2d 891 (Sup.Ct. Nassau Co. 1973) was terminated in a dismissal at the end of the entire case on trial, by memorandum decision dated October 26, 1976 (Young, J.), which dismissal was affirmed by the Appellate Division, Second Department, by order dated March 12, 1979.

Also, in the reply affirmation by its counsel dated March 25, 1982, the Town contends that the sidewalk area involved in this accident is within the right-of-way of Jericho Turnpike owned and maintained by and for the special benefit of the State of New York.

Determination

A motion for reargument addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law. The purpose is not to permit the unsuccessful party to reargue the very questions previously decided. Fosdick v. Town of Hempstead, 126 N.Y. 651, 27 N.E. 382 (1891); Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 (1st Dept. 1979); Barry v. Good Samaritan Hospital, 86 A.D.2d 853, 447 N.Y.S.2d 331 (1st Dept. 1982). Nor is reargument an appropriate vehicle for raising new contentions. Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968).

Plaintiffs have failed to set forth any valid ground for reargument under the principles of "reargument" above set forth.

Further, the grounds raised by the defendant Town are in fact "new" contentions not properly the subject of a motion for reargument.

However, in the absence of objection by the plaintiffs, and in the interest of avoiding another motion by the Town for summary judgment, the Court will grant leave to the Town to reargue and consider the Town's motion for summary judgment on the merits.

Town Law § 65-a(2) provides, in pertinent part, as follows:

"2. No civil action shall be maintained against any town or town superintendent of highways for damages or injuries to person ... sustained by reason of any defect in its sidewalks ... unless such sidewalks have been constructed or are maintained by the town or the superintendent of highways of the town pursuant to statute, nor shall any action be maintained for damages or injuries to person ... sustained by reason of such defect ... unless written notice thereof, specifying the particular place, was actually given to the town clerk or to the town superintendent of highways, and there was a failure or neglect to cause such defect to be remedied ... or to make the place otherwise reasonably safe within a reasonable time after the receipt of such notice." (Emphasis supplied)

This Court has already determined that the Town had the duty to maintain the sidewalk in question and the plaintiffs concede that no prior written notice was given to anyone. Therefore, the sole remaining issue is whether the downed sign post lying on the sidewalk area was a "defect in its sidewalk" within the purview of the Town Law § 65-a(2).

It is well established that a municipality such as the Town of North Hempstead has the power to insulate itself from liability for negligence and, in the absence of compliance with applicable statutory provisions, no civil action for damages may be maintained. MacMullen v. City of Middletown, 187 N.Y. 37, 79 N.E. 863; Ellis v. City of Geneva, 259 App.Div. 502, 20 N.Y.S.2d 21 (4th Dept. 1940) aff'd 288 N.Y. 478, 41 N.E.2d 174 (1942); Fullerton v. City of Schenectady, 285 App.Div. 545, 138 N.Y.S.2d 916 (3rd Dept. 1955) aff'd 309 N.Y. 701, 128 N.E.2d 413 (1955).

One exception to this strict law is that if the defect or condition is created by the municipality, prior written notice is not required. Muszynski v. City of Buffalo, 33 A.D.2d 648, 305 N.Y.S.2d 163 (4th Dept. 1969) aff'd 29 N.Y.2d 810, 327 N.Y.S.2d 368, 277 N.E.2d 414 (1971); Siddon v. M. H. Fishman Co., Inc., 65 A.D.2d 832, 409 N.Y.S.2d 830 (3rd Dept. 1978) (and cases cited therein). In this case, there is no evidence that the defendant Town caused or created the condition of the fallen sign post.

In the leading decision in Doremus v. Incorporated Village of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 222 N.E.2d 376 (1966), involving the failure to repair a stop sign, the Court of Appeals, interpreting Village Law § 341-a, requiring prior written notice of a defective "street, highway, bridge, culvert, sidewalk or crosswalk", concluded that such a statute "seems to refer to actual physical defects in the surface of a street, highway, bridge, culvert, sidewalk or crosswalk". In a statement significant to this case, the Court held as follows:

"Our conclusion is that section 341-a read strictly, as it should be read, refers to physical conditions in streets or sidewalks and was an effort to exempt the villages from liability for holes and breaks of a kind which do not immediately come to the attention of the village officers unless they are given actual notice thereof."

Doremus has been cited for the proposition that "requirements of prior written notice of unsafe conditions are in derogation of the common law, and as such should not have any extension written into them". Zumbo v. Town of Farmington, 60 A.D.2d 350, 401 N.Y.S.2d 121 (4th Dept. 1978).

The Court notes that the pertinent provisions of the Town Law do not include the word "obstructed" as was the case in Johnstown Leather Corp. v. City of Gloversville, 56 A.D.2d 345, 393 N.Y.S.2d 89 (3rd Dept. 1977). It may be inferred that ...