Lauria v. City of New Rochelle

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MIKOLL; CREW; MIKOLL
• Citation: Lauria v. City of New Rochelle, 639 N.Y.S.2d 867, 225 A.D.2d 1013 (N.Y. App. Div. 1996)
• Decision Date: 21 March 1996
• Parties: Elizabeth LAURIA, Appellant, v. CITY OF NEW ROCHELLE, Respondent.

Page 867

639 N.Y.S.2d 867

225 A.D.2d 1013

Elizabeth LAURIA, Appellant, v. CITY OF NEW ROCHELLE, Respondent.

Supreme Court, Appellate Division Third Department.

March 21, 1996.

Alpert & Kaufman (Morton Alpert of counsel), New York City, for appellant.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins (Pamela Millian of counsel), White Plains, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

CREW, Justice.

Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from an order of the Supreme Court (Colabella, J.), entered July 28, 1994 in Westchester County, which granted defendant's motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered March 7, 1995 in Westchester County, which, upon reconsideration, adhered to its prior decision.

In the early morning hours of October 13, 1991, plaintiff was returning to her car, located in a municipal parking lot in the City of New Rochelle, Westchester County, when she tripped on an uneven portion thereof, fell and was seriously injured. As a consequence, plaintiff commenced this negligence action against defendant. Defendant answered and thereafter successfully moved for summary judgment on the ground that it had received no prior written notice of the alleged defective condition of the parking lot in accordance with the General Municipal Law and defendant's City Charter (see, General Municipal Law § 50-e[4]; New Rochelle City Charter, art. XII, § 127A). Plaintiff then moved for reargument, which motion was granted, and upon reargument Supreme Court adhered to its prior ruling. These appeals by plaintiff followed.

Plaintiff contends that the municipal parking lot in question does not constitute one of the six enumerated locations under General Municipal Law § 50-e(4) requiring prior written notice. ^{1 1} We disagree. It has long been held that a municipal parking lot is a location where the general public has a general right of passage and is therefore, in legal contemplation, a highway (see, People v. County of Westchester, 282 N.Y. 224, 228, 26 N.E.2d 27; Englehardt v. Town of Hempstead, 141 A.D.2d 601, 602, 529 N.Y.S.2d 523, lv. denied 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425; Stratton v. City of Beacon, 91 A.D.2d 1018, 1019, 457 N.Y.S.2d 893; Ebert v. Incorporated Vil. of Garden City, 21 Misc.2d 607, 608, 196 N.Y.S.2d 878). Plaintiff contends, however, that the lot at issue here does not constitute a highway because a permit was required to park therein and, as such, it was not open to the general public (see, Stratton v. City of Beacon, supra, at 1019, 457 N.Y.S.2d 893; People v. Kraushaar, 195 Misc. 487, 89 N.Y.S.2d 685; Weinstein v. McKenzie, 177 Misc. 451, 30 N.Y.S.2d 733). In support of this proposition, plaintiff refers to certain deposition testimony of defendant's Superintendent of Highways, which is not part of the record on appeal and was not presented to Supreme Court in opposition to defendant's motion for summary judgment. Accordingly, that evidence will not be considered by this court (see, Chimarios v. Duhl, 152 A.D.2d 508, 508-509, 543 N.Y.S.2d 681). In any event, plaintiff's argument is lacking in merit, as the parking lot in question was open to the general public, without charge or permit, after 6:00 P.M. (see, New Rochelle Code, art. VII, § 312-62[E][6], and plaintiff's fall in that lot occurred at 3:00 A.M.

Plaintiff argues in...