Johnstown Leather Corp. v. City of Gloversville

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: GREENBLOTT
• Citation: Johnstown Leather Corp. v. City of Gloversville, 393 N.Y.S.2d 89, 56 A.D.2d 345 (N.Y. App. Div. 1977)
• Decision Date: 24 March 1977
• Parties: JOHNSTOWN LEATHER CORP., Respondent, v. CITY OF GLOVERSVILLE, New York, Appellant.

Page 89

393 N.Y.S.2d 89

56 A.D.2d 345

JOHNSTOWN LEATHER CORP., Respondent, v. CITY OF GLOVERSVILLE, New York, Appellant.

Supreme Court, Appellate Division, Third Department.

March 24, 1977.

Angelo D. Lomanto, City Atty., Gloversville (David F. Jung, Gloversville, of counsel), for appellant.

Rudolph A. Russo, Johnstown (Terrence M. Walsh, Johnstown, of counsel), for respondent.

Before KOREMAN, P.J., and GREENBLOTT, KANE, MAHONEY and LARKIN, JJ.

OPINION FOR REVERSAL

GREENBLOTT, Justice.

Plaintiff instituted this action against the City of Gloversville and the owners of certain property to recover for damage sustained by its truck when it allegedly struck a tree which was partially obstructing a highway, East Fulton Street, in said City. The tree grew in a terrace running parallel with the street, and allegedly adjacent or on the individual defendants' property. The claim of negligence was based upon the allegation that the defendants had been negligent in failing to correct a dangerous condition created by a limb overhanging the roadway. The accident occurred when plaintiff's employee, while driving the truck, allegedly moved to the right to avoid a vehicle traveling close to the center line in the opposite direction, and though remaining in its own traffic lane, struck the limb and sustained property damage. Prior to the accident no actual notice of a defective condition had ever been give to the City.

A motion to dismiss the complaint as against the individual defendants was granted. We are satisfied that insufficient proof was offered to show that the tree was on the individual defendants' property, and, therefore, conclude that the dismissal of the complaint against them was proper. Defendant City also moved to dismiss plaintiff's complaint, since prior written notice of the defect was not proved. The denial of this motion is challenged on this appeal by the City from a judgment in plaintiff's favor in the amount of $1,578.53.

The City's contention is based upon section 249 of the Gloversville City Charter (L.1899, ch. 275, as amended by § 2, City of Gloversville Local Law No. 2 of 1947, and as further amended by City of Gloversville Local Law No. 3 of 1949), which provides in pertinent part as follows:

No civil action shall be brought or maintained against the city of Gloversville for damage or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk, crosswalk, or other outdoor public place 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 city engineer of the city of Gloversville, and there had been a failure or neglect on the part of said city to cause such condition to be corrected * * * or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.

The trial court appears to have regarded this statute as inapplicable, since it denied defendant City's motion without stating its reasons.

Plaintiff argues that the statute is...