Freeman v. Nassau County

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DAMIANI; TITONE; DAMIANI, J.P., and LAZER and BOYERS, JJ., concur in the opinion of TITONE
• Citation: Freeman v. Nassau County, 466 N.Y.S.2d 684, 95 A.D.2d 363 (N.Y. App. Div. 1983)
• Decision Date: 12 September 1983
• Parties: Charles FREEMAN, et al., Appellants, v. COUNTY OF NASSAU, et al., Defendants, Village of Cedarhurst, Respondent.

Page 684

466 N.Y.S.2d 684

95 A.D.2d 363

Charles FREEMAN, et al., Appellants, v. COUNTY OF NASSAU, et al., Defendants Village of Cedarhurst, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 12, 1983.

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

Nissen & Huenke, New York City (James G. Kelly, New York City, of counsel), for respondent.

Before DAMIANI, J.P., and TITONE, LAZER and BOYERS, JJ.

TITONE, Justice.

In an action seeking damages for personal injuries and loss of consortium, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County, as, upon the defendant Village of Cedarhurst's motion for summary judgment, dismissed their complaint against said defendant.

The issue is whether a bent sign stanchion constitutes an obstruction within the meaning of a notice of defect ordinance. We conclude that it does and affirm.

On November 9, 1978, plaintiff Charles Freeman sustained injuries as a result of falling over a sign stanchion located on Peninsula Boulevard in the Village of Cedarhurst. The complaint alleges that various defendants were negligent in the maintenance of the stanchion and sign in that they were bent over a public sidewalk and the lighting was inadequate.

The Village of Cedarhurst has adopted an ordinance essentially identical to CPLR 9804 and section 6-628 of the Village Law, which provides, in pertinent part, that "[n]o civil action shall be brought or maintained against the Village for damages or injuries to person or property sustained in consequence of any * * * sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed * * * unless written notice of the existence of such condition, relating to the particular place, had theretofore actually been given to the board of trustees of the Village" (Village of Cedarhurst Code of Ordinances, § 2-5, subd [a] ).

The Village's answer alleged non compliance with this condition precedent and following depositions it sought summary judgment. Plaintiff's argument that the sign did not constitute an obstruction within the ambit of the ordinance was rejected by Special Term, which reasoned that the ordinance "specifically encompasses obstructed sidewalks regardless of what the obstruction is". We agree.

Ordinances and statutes such as the ordinance now before us represent a solution "to the vexing problem of municipal street and sidewalk liability" (Barry v. Niagara Frontier Tr. System, 35 N.Y.2d 629, 633, 364 N.Y.S.2d 823, 324 N.E.2d 312; see also Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867). Before any duty will arise with respect to a street defect or dangerous condition, prior written notice of such defect or condition is required. Unless the municipality concerned caused or created the condition (Jagoda v. City of Dunkirk, 43 A.D.2d 795, 796, 350 N.Y.S.2d 249; Muszynski v. City of Buffalo, 33 A.D.2d 648, 305 N.Y.S.2d 163, affd 29 N.Y.2d 810, 327 N.Y.S.2d 368, 277 N.E.2d 414), failure to plead and prove such notice defeats the cause of action. "The practical consequence of this requirement is to prevent any possibility of liability for nonfeasance, except where the village fails or refuses to remedy the condition within a reasonable time after receipt of notice" (Barry v. Niagara Frontier Tr. System, 35 N.Y.2d 629, 633-634, 364 N.Y.S.2d 823, 324 N.E.2d 312 supra ).

While such enactments, being in derogation of the common law, should be strictly construed (Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 222 N.E.2d 376), we cannot give them a strained interpretation to defeat their obvious intent (Johnstown Leather Corp. v. City of Gloversville, 56 A.D.2d 345, 347, 393 N.Y.S.2d 89).

In this case, the only question is whether the sign stanchion constitutes an obstruction, as other provisions of the Village of Cedarhurst Code of Ordinances are not claimed to be applicable. As a matter of plain meaning, "a street or highway is obstructed if there is any hindrance or obstacle to passage" (Johnstown Leather Corp. v. City of Gloversville, supra, p. 347, 393 N.Y.S.2d 89; see, also, DeLeo v. Orlando, 29 Conn.Sup. 107, 273 A.2d...