Murphy v. County of Westchester
| Decision Date | 20 June 1996 |
| Parties | Kathleen MURPHY, Appellant, v. COUNTY OF WESTCHESTER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
David Horowitz P.C. (Martin B. Nadle, of counsel), New York City, for appellant.
Marilyn J. Slaatten, County Attorney (Annette H. Marshall, of counsel), White Plains, for respondent.
Before CREW, J.P., and WHITE, YESAWICH, PETERS and SPAIN, JJ.
CREW, Justice Presiding.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Shapiro, J.), entered April 28, 1995 in Westchester County, which granted defendant's motion for summary judgment dismissing the complaint.
On December 9, 1992, plaintiff tripped and fell at the entranceway of the Psychiatric Institute of Westchester County Medical Center. Plaintiff thereafter commenced this action against defendant alleging both actual and constructive notice of the allegedly defective condition existing at that location. Following joinder of issue and discovery, defendant moved for summary judgment on the ground that plaintiff failed to comply with the prior written notice requirements of the Westchester County Code and, further, failed to establish that defendant had constructive notice of the allegedly defective condition. Supreme Court granted the motion and this appeal ensued.
Initially, plaintiff claims that the prior written notice provisions of the Westchester County Code are inapplicable to this case because the negligence complained of has to do with a defective building and not a street, highway, bridge, culvert, sidewalk or crosswalk (see, Walker v. Town of Hempstead, 84 N.Y.2d 360, 367-368, 618 N.Y.S.2d 758, 643 N.E.2d 77). We disagree. The record reflects that a brick walkway, which was constructed on compacted fill, leads to the entranceway of the Psychiatric Institute and that as a result of settling over a period of time, a lip developed at the doorway measuring approximately 1/2 inch in height and running the full width of the entranceway. Contrary to plaintiff's assertion that this constituted a defect in the building, it is clear that the alleged defect was the result of the settling of the walkway. Supreme Court properly concluded, therefore, that the allegedly defective condition was subject to the prior written notice provisions of the Westchester County Code.
With respect to the issue of notice, although we agree that the proof submitted by...
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