Levine by Levine v. Sharon

• Court: New York Supreme Court — Appellate Division
• Citation: Levine by Levine v. Sharon, 554 N.Y.S.2d 274, 160 A.D.2d 840 (N.Y. App. Div. 1990)
• Decision Date: 16 April 1990
• Parties: Michael J. LEVINE, an Infant, by His Mother and Natural Guardian, Diane LEVINE, et al., Respondents, v. Ezra SHARON, Defendant Third-Party Plaintiff-Respondent; Neil Weinstein, Third-Party Defendant-Respondent; Town of North Hempstead, Third-Party Defendant-Appellant.

Page 274

554 N.Y.S.2d 274

160 A.D.2d 840

Michael J. LEVINE, an Infant, by His Mother and Natural Guardian, Diane LEVINE, et al., Respondents, v. Ezra SHARON, Defendant Third-Party Plaintiff-Respondent Neil Weinstein, Third-Party Defendant-Respondent Town of North Hempstead, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

April 16, 1990.

John F. Delaney, Town Atty., Manhasset (Nancy M. Peppard, of counsel; Sandra L. Digiorgio, on the brief), for third-party defendant-appellant.

Louis F. Vaccarella, Hauppauge (Richard J. Baldwin, of counsel), for defendant third-party plaintiff-respondent.

Before MANGANO, P.J., and THOMPSON, BRACKEN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the third-party defendant Town of Hempstead appeals from an order of the Supreme Court, Nassau County (Robbins, J), dated November 22, 1988, which denied its motion for summary judgment dismissing the third-party complaint insofar as it is asserted against it and any cross claims against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, third-party complaint insofar as it is asserted against the appellant and any cross claims against it are dismissed, and the third-party complaint against the remaining third-party defendant is severed.

On September 13, 1986, the infant plaintiff was struck by an automobile driven by the defendant third-party plaintiff Sharon, at the intersection of Hawthorne Lane and Bayside Drive, in Great Neck, New York. The defendant Sharon commenced this third party action by service of a summons and complaint upon the Town of North Hempstead and Neil Weinstein, the owner of the corner property abutting the intersection. The complaint as against the Town alleged that the Town negligently failed to enforce Town of North Hempstead Code § 70-203(B), providing, in pertinent part, that "no hedge, tree, shrub or other growth shall be maintained [that] so obstructs the view of operators of motor vehicles as to create a traffic hazard". The Town moved for summary judgment dismissing the third-party complaint insofar as it is asserted against it and any cross claims against it on two grounds: (1) there was no evidence of prior written notice of the alleged defective condition, required as a condition precedent to the maintenance of an action in negligence against the Town under Town of North Hempstead Code § 26-1, which provides, in pertinent part, that "[n]o civil action shall be maintained against the Town of North Hempstead * * * for damages or injuries to person or property sustained in consequence of any highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed * * * unless written notice * * * was actually given to the Town", and (2) in the absence of a special relationship creating a municipal duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failure to enforce a statute or regulation. The Supreme Court denied the Town's motion, finding that Town of North Hempstead Code § 26-1, requiring prior written notice of a defect, did not apply to the conditions present in this case, and that a special relationship was created by Town of North Hempstead Code § 70-203(B). We disagree.

In order to hold the Town liable in this case, it was necessary for the plaintiff in his complaint and/or the defendant Sharon to allege in his third-party complaint that pursuant to Town of North Hempstead Code § 26-1 prior written notice was given to the Town of the obstructive condition which allegedly caused the accident. Contrary to the defendant's assertion,...