Holt v. Tioga County

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MAIN
• Citation: Holt v. Tioga County, 464 N.Y.S.2d 278, 95 A.D.2d 934 (N.Y. App. Div. 1983)
• Decision Date: 16 June 1983
• Parties: Leona M. HOLT, Appellant, v. COUNTY OF TIOGA, Respondent.

Page 278

464 N.Y.S.2d 278

95 A.D.2d 934

Leona M. HOLT, Appellant, v. COUNTY OF TIOGA, Respondent.

Supreme Court, Appellate Division Third Department.

June 16, 1983.

Coughlin & Gerhart, Binghamton (Peter H. Bouman, Binghamton, of counsel), for appellant.

Thaler & Thaler, Ithaca (Peter J. Walsh, Ithaca, of counsel), for respondent.

Before MAIN, J.P., and MIKOLL, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal (1) from an order of the Supreme Court at Special Term, entered October 12, 1982 in Tioga County, which granted defendant's motion for summary judgment dismissing plaintiff's complaint, and (2) from the judgment entered thereon.

Plaintiff was injured in an accident on West Creek Road in Tioga County when the right wheels of the pickup truck she was driving fell into a depression or drop-off on the edge of the pavement causing the vehicle to veer across the highway and collide with a tree. Suit was brought against the county for negligently maintaining the shoulder. The county interposed as an affirmative defense that it had not been given prior notice of the defective condition as was required by Tioga County Local Law No. 2 of 1978.

Our earlier decision declaring the local law repugnant to section 139 of the Highway Law and therefore unconstitutional (82 A.D.2d 991, 440 N.Y.S.2d 394) was reversed on appeal (56 N.Y.2d 414, 452 N.Y.S.2d 383, 437 N.E.2d 1140). On remittal, Special Term found that prior notice of the shoulder condition giving rise to the accident had not been furnished, dismissed plaintiff's estoppel and constitutional arguments, and granted summary judgment in favor of defendant.

Plaintiff contends that Local Law No. 2 contravenes the due process and equal protection clauses of the Fourteenth Amendment of the Federal Constitution. Initially, we note that since neither we nor the Court of Appeals expressly addressed these particular constitutional claims earlier, the doctrine of law of the case does not hinder our consideration of them now (see Barrett v. State Mut. Life Assur. Co., 58 A.D.2d 320, 396 N.Y.S.2d 848, affd. 44 N.Y.2d 872, 407 N.Y.S.2d 478, 378 N.E.2d 1047, cert. den. 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461).

As for the merits of this argument, we find no constitutional violation. The right to sue a subdivision of the State for negligence in the performance of a governmental function is founded upon statute and the legislative authority involved may properly limit such right as it sees fit (Matter of Brown v. Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 N.Y. 484, 489, 104 N.E.2d 866; MacMullen v. City of Middletown, 187 N.Y. 37, 79 N.E. 863). Since Local Law No. 2, which was in effect at the time of the accident, defined a right to sue only if prior written notice had been given to the county, the absence of such notice means that plaintiff never possessed a vested right to bring an action. Moreover, the statute possesses a rational basis in that it enables the county to protect the traveling public (Martin v. City of Cohoes, 37 N.Y.2d 162, 166, 371 N.Y.S.2d 687, 332 N.E.2d 867); for these reasons we find no denial of due process.

We also reject the argument that Local Law No. 2 has been applied in an impermissibly retroactive manner. This position is based upon the premise that the alleged defect in the shoulder of the road existed prior to the enactment of the statute and that the county should not be permitted to legislate away liability for such a defect by imposing a prior notice requirement. Plaintiff's focus solely on the existence of the defect is, however, misguided because her purported right to sue could not have vested until the occurrence of the accident, at which point Local Law No. 2 had been in effect for over four months. Thus, the statute has not been retroactively applied (see Dodin v. Dodin, 17 Misc. 35, 40, 40 N.Y.S. 748, affd. 16 App.Div. 42, 44 N.Y.S. 800, affd. 162 N.Y. 635, 57 N.E. 1108).

The equal protection argument is similarly unavailing. All victims involved in Tioga County accidents caused by improper highway maintenance are required to demonstrate prior notice. Furthermore, it is not illogical to allow each county to determine whether a prior written notice ordinance is desirable, for each is...