LaRosa by LaRosa v. Town of Hempstead

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MILLER
• Citation: LaRosa by LaRosa v. Town of Hempstead, 655 N.Y.S.2d 620, 237 A.D.2d 579 (N.Y. App. Div. 1997)
• Decision Date: 31 March 1997
• Parties: Leonard LaROSA, an Infant, by His Parent and Natural Guardian, Stephanie LaROSA, et al., Respondents, v. TOWN OF HEMPSTEAD, Appellant.

Page 620

655 N.Y.S.2d 620

237 A.D.2d 579

Leonard LaROSA, an Infant, by His Parent and Natural Guardian, Stephanie LaROSA, et al., Respondents, v. TOWN OF HEMPSTEAD, Appellant.

Supreme Court, Appellate Division Second Department.

March 31, 1997.

Ronald J. Levinson, Town Attorney, Hempstead, for appellant.

Byron Lassin, Jackson Heights, (Barbara Cohen, of counsel), for respondents.

Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Kohn, J.), dated May 1, 1996, which denied its motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiffs brought the instant personal injury action to recover damages, inter alia, for injuries allegedly sustained by the infant plaintiff when he fell in a parking lot owned by the defendant Town of Hempstead (hereinafter the Town). The Town moved for summary judgment pursuant to Town of Hempstead Code § 6-1 on the ground that it had not received prior written notice of the alleged defect.

Town of Hempstead Code § 6-1 provides, in relevant part, that "[n]o civil action shall be maintained against the [Town] * * * for damages or injuries to persons or property sustained by reason of any highway * * * being defective * * * unless written notice of * * * such defective * * * condition of such highway * * * was actually served upon the town clerk * * * and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect * * * complained of." Town of Hempstead Code § 6-2 contains a similar prior written notice requirement with respect to defective conditions at a "parking field, beach area, swimming or wading pool or pool equipment, skating rink or park property".

We agree with the Town's contention that prior written notice of the defective condition alleged in the instant case is a condition precedent to maintaining the instant action. This court has repeatedly held that "the term highway, as it is commonly used in local laws and ordinances such as the one now under review, is broad enough to encompass within its scope those paved surfaces open to public automobile traffic which could more precisely be defined as parking lots" (Mendes v. Whitney-Floral Realty Corp., 216 A.D.2d 540, 541, 629 N.Y.S.2d 63 [citations omitted]; see, Doherty v. Town of Clarkstown, 233 A.D.2d 477, 650 N.Y.S.2d 31; Stratton v. City of Beacon, 91 A.D.2d 1018, 457 N.Y.S.2d 893).

The plaintiffs' reliance upon Walker v. Town of Hempstead, 84 N.Y.2d 360, 618 N.Y.S.2d 758, 643 N.E.2d 77 is misplaced. Contrary to the plaintiffs' contention, in that case, the Court of Appeals did not hold that Town of Hempstead Code § 6-2 was invalid in its entirety. Rather, it held that Town of Hempstead Code § 6-2 was invalid "to the extent that it pertains to locations other than streets, highways, bridges, culverts, sidewalks, or crosswalks" (Walker v. Town of Hempstead, ...