Rooney v. City of Long Beach

• Decision Date: 18 June 1973
• Citation: 42 A.D.2d 34,345 N.Y.S.2d 66
• Parties: Elizabeth ROONEY et al., Respondents-Appellants, v. The CITY OF LONG BEACH et al., Appellants, and Henry LeClair et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 66

345 N.Y.S.2d 66

42 A.D.2d 34

Elizabeth ROONEY et al., Respondents-Appellants, v. The CITY OF LONG BEACH et al., Appellants, and Henry LeClair et al., Respondents.

Supreme Court, Appellate Division, Second Department.

June 18, 1973.

David J. Weinblatt, Corp. Counsel of The City of Long Beach, Farmingdale (Azreal A. Alpern, Elmont, of counsel), for appellant City of Long Beach.

Reid & Alio, Huntington Station (John F. Mulholland and Michael J. Roe, Garden City, of counsel), for appellant Rosenfeld.

Lawrence R. Wild, Brooklyn (Bernard Meyerson, Brooklyn, of counsel), for respondents-appellants.

Wynne, Sparacio, Capriano & Trentalange, New York City (Kurt Dinkelmeyer, of counsel), for respondents LeClair and Edward and Genevieve Domitz.

Before LATHAM, Acting P.J., and SHAPIRO, GULOTTA, CHRIST and BRENNAN, JJ.

GULOTTA, Justice.

The female plaintiff was injured on July 6, 1967 when she fell on a sidewalk in the City of Long Beach, New York. She sued to recover damages for the personal injuries sustained by her in the fall and her husband sued to recover for loss of consortium and medical expenses. There is no question that the cause of the fall was a curb stop (another name for a water shutoff valve) which protruded about 2 1/2 inches above the level of the sidewalk. The defendants are (1) the City of Long Beach, (2) Bertha Rosenfeld, the owner of property at 41 Alabama Street, which abuts the sidewalk where the valve protrudes and (3) Henry LeClair, Edward Domitz and Genevieve Domitz, the owners of property at 39 Alabama Street, which is serviced by the valve although it does not abut the particular slab of sidewalk where the valve is situated.

At the close of the entire case at the trial on the issue of liability only, the trial court dismissed the complaint against defendants LeClair and the Domitzes upon the ground that the special use theory of liability for accidents on defective sidewalks applies only to landowners whose property abuts the particular part of the sidewalk where the defect exists. The jury returned a verdict in favor of the plaintiffs and against both remaining defendants, the City of Long Beach and the abutting property owner Rosenfeld.

Defendants Rosenfeld and City of Long Beach have appealed from the interlocutory judgment of liability against them and the plaintiffs have cross-appealed from the dismissal of the complaint against defendants LeClair and the two Domitzes. We note at this juncture that the judgment appealed from does not contain a decretal provision dismissing the complaint against the three latter defendants. This appears to have been a mere oversight, since the dismissal is contained in the trial record and is noted in the recital portion of the judgment. Accordingly, we deem the judgment amended to include a provision reciting the dismissal.

In our opinion the dismissal of the plaintiffs' complaint against defendants LeClair and the Domitzes was error. An owner is liable where he fails to maintain in a reasonably safe condition a sidewalk which is constructed in a special manner in order that his property may derive a special benefit (Nickelsburg v. City of New York, 263 App.Div. 625, 626, 34 N.Y.S.2d 1). Although the cases concerning the special use of sidewalks usually involve an abutting owner, it is not essential to liability that an owner's property abut the place in question. It is sufficient if the property derives a special benefit and is proximate to the situs of the specially constructed sidewalk. The testimony at the trial established that the valve in question is located only some 12 to 15 inches from the property line of defendants LeClair and the Domitzes. Since the valve benefited this property, defendants LeClair and the Domitzes were obligated to keep it in a reasonably safe condition. They had owned the premises since February, 1967 and the condition had existed at least since 1954, when Rosenfeld bought her house. In our opinion, the case against defendants LeClair and the Domitzes should have gone to the jury on the question of whether the valve was negligently maintained and, if so, whether they had notice of the defective condition.

We turn now to the liability of the City of Long Beach. The city contends that the trial court erred in denying its trial motion to interpose as a defense the plaintiffs' failure to comply with section 256--a of the Charter of the City of Long Beach, which states that no civil action may be maintained against it for a defective sidewalk unless the city receive written notice of any such defective condition at least 48 hours prior to the occurrence in question. In our opinion, the denial of this motion was not an abuse of discretion, since the almost three-year delay in seeking to interpose this defense, from the time the city served its answer to the time of trial, certainly constituted gross and inexcusable laches.

It is our further opinion that prior notice under the charter provision was not required for an entirely different reason. The evidence adduced at the trial was sufficient to establish that the valve was installed either by the city itself or by a private contractor at the city's behest and under its supervision. One pipe was brought in from the street main to a 'T' in the sidewalk to service both houses with a separate curb stop for each house. The foreman of the city's water distribution system testified that the Installation of the valve was improper, defective and in violation of the rules. The city controlled the water lines from the main to the valve and the homeowners controlled the lines from the valves to their houses.

This evidence is sufficient to support a finding of liability upon the part of the city and to eliminate the prior notice requirement, because it enabled the jury to find (1) that the valve constituted a special use for the benefit of the city (see Smith v. City of Corning, 14 A.D.2d 27, 217 N.Y.S.2d 149) and (2) that the defective condition which caused the accident had been created by the improper installation of the valve by the city (Calkins v. City of Plattsburgh, 11 A.D.2d 153, 204 N.Y.S.2d 453; Levin v. Fred Gary, Inc., 32 Misc.2d 94, 221 N.Y.S.2d 400). Accordingly, the judgment insofar as it is against the city should be affirmed.

We now consider the liability of defendant Rosenfeld. Since her property was not benefited by the special use and her own valve was installed flush with the sidewalk, the source of her liability must be found elsewhere or the judgment against her must fall. At common law it was a general rule that only the municipality might be held liable for the negligent failure to remove snow, ice and obstructions from a public sidewalk or to have defects and dangerous conditions in the sidewalk repaired, since the municipality is in control of the sidewalk and not the abutting owner (City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937; Tremblay v. Harmony Mills, 171 N.Y. 598, 64 N.E. 501; Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59, 248 N.E.2d 896).

In Willis v. Parker, 225 N.Y. 159, 121 N.E. 810 it was held that where this liability had been transferred to the abutting property owner by the terms of a city charter granted by the State Legislature itself, it was effective to change the rule of the Rochester case. The Legislature also enacted subdivision 1 of section 11 of the former City Home Rule Law, which authorized a city to adopt local laws relating to...