Muszynski v. City of Buffalo

• Decision Date: 18 November 1971
• Citation: Muszynski v. City of Buffalo, 327 N.Y.S.2d 368, 29 N.Y.2d 810, 277 N.E.2d 414 (N.Y. 1971)
• Parties: , 277 N.E.2d 414 Henry J. MUSZYNSKI, Individually and as Guardian ad Litem of Mary H. Muszynski, an Infant, Respondent, v. CITY OF BUFFALO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 368

327 N.Y.S.2d 368

29 N.Y.2d 810, 277 N.E.2d 414

Henry J. MUSZYNSKI, Individually and as Guardian ad Litem of Mary H. Muszynski, an Infant, Respondent, v. CITY OF BUFFALO, Appellant.

Court of Appeals of New York.

Nov. 18, 1971.

Anthony Manguso, Corp. Counsel (Anthony Gregory, Buffalo, of counsel), for appellant.

John J. Madden, Buffalo, for respondent.

PER CURIAM.

Order affirmed, with costs, on the opinion at the Appellate Division, 33 A.D.2d 648, 305 N.Y.S.2d 163.

FULD, C.J., and BURKE, BERGAN, BREITEL and GIBSON, JJ., concur.

SCILEPPI, J., dissents and votes to reverse in the following opinion.

JASEN, J., taking no part.

SCILEPPI, Judge (dissenting).

I cannot agree with the majority that liability should be visited upon the city and conclude that the complaint was properly dismissed by the trial court.

Pursuant to section 362 of the Buffalo City Charter, Loc.Laws 1932, p. 21, no civil action to recover damages for personal injuries sustained as a result of defective sidewalks may be maintained against that municipality, unless prior thereto, the city has received written notice of a defect which it has failed to remedy. The provision, in derrogation of common law, 'was an effort to exempt (municipalities) from liability for holes and breaks of a kind which do not immediately come to the attention of the (municipal) officers unless they are given actual notice thereof' (Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 365--366, 275 N.Y.S.2d 505, 507, 222 N.E.2d 376, 378). In the case before us, there is no question but that the requisite notice was not given. We are told, however, that the case falls within an apparent exception to the notice requirement which exists in cases where the city causes and maintains the defective condition (see, e.g., Filsno v. City of Rochester, 10 A.D.2d 663, 196 N.Y.S.2d 311). I disagree.

Respondents attempted to show that the city caused the defective condition by placing the barrel on the street and then allowing its employees to negligently refill it in a manner which allowed salt to spill out onto the sidewalk. They called expert witnesses who testified that salt, if used indiscriminately, and over a prolonged period of time, can be a competent producing cause of sidewalk deterioration. In my view, this testimony, based as it is on nothing more than speculation and surmise, should be disregarded (Carrera v. State of New York, 29 A.D.2d 577, 285 N.Y.S.2d 332). The question was posed as a hypothetical one, but fatal to respondents' position is the fact that there was no evidence presented that the city had allowed salt to accumulate over long periods of time. No witnesses were called to show that the city had negligently refilled the barrels. In point of fact, respondents called the custodian of the...