Hogan v. Grand Union Co.

• Decision Date: 22 January 1987
• Citation: Hogan v. Grand Union Co., 511 N.Y.S.2d 166, 126 A.D.2d 875 (N.Y. App. Div. 1987)
• Parties: Rita HOGAN et al., Respondents, v. GRAND UNION COMPANY, Respondent, and City of Schenectady, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 166

511 N.Y.S.2d 166

126 A.D.2d 875

Rita HOGAN et al., Respondents, v. GRAND UNION COMPANY, Respondent and City of Schenectady, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 22, 1987.

Alfred L. Goldberger (Richard G. Greene, of counsel), Corp. Counsel, Schenectady, for appellant.

Maynard, O'Connor & Smith (Robin Bartlett Phelan, of counsel), Schenectady, for respondents.

Bohl, Clayton, Komar & Della Rocca (Abilio Tavares, Jr., of counsel), Albany, for respondent.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Graves, J.), entered May 1, 1986 in Schenectady County, which denied defendant City of Schenectady's motion for summary judgment dismissing the complaint against it.

Plaintiffs commenced this action against defendants, Grand Union Company and City of Schenectady, for injuries allegedly sustained when plaintiff Rita Hogan fell on a sidewalk adjacent to a parking lot owned by Grand Union. The City moved for summary judgment dismissing the complaint against it on the ground that it did not receive prior written notice of the hazardous condition as required by Schenectady City Charter § 1.7. The motion was denied and the City appealed.

Laws requiring prior written notice are in derogation of the common law and thus are strictly construed (Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 365, 275 N.Y.S.2d 505, 222 N.E.2d 376; Rehfuss v. City of Albany, 118 A.D.2d 987, 500 N.Y.S.2d 88). The primary effect of notice laws is to protect municipalities from liability for defects in streets and sidewalks which are the result of nonfeasance (Barry v. Niagara Frontier Tr. System, 35 N.Y.2d 629, 633-634, 364 N.Y.S.2d 823, 324 N.E.2d 312; Barrett v. City of Buffalo, 96 A.D.2d 709, 710, 465 N.Y.S.2d 376). However, if the complaint alleges that the municipality created or caused the hazardous condition, prior written notice is not required to maintain the action (Haviland v. Smith, 91 A.D.2d 764, 765, 458 N.Y.S.2d 11; Siddon v. Fishman Co., 65 A.D.2d 832, 833, 409 N.Y.S.2d 830, lv. denied 46 N.Y.2d 714, 416 N.Y.S.2d 1028, 390 N.E.2d 305). Here, plaintiffs alleged in their complaint that the City was negligent in the construction of the sidewalk area where the injury occurred. Although questions were raised as to the extent of actual control exercised by the City over the design and construction of the sidewalk, these represent factual...