Schwartz v. Turken
| Decision Date | 01 October 1982 |
| Citation | 454 N.Y.S.2d 669,115 Misc.2d 829 |
| Court | New York Supreme Court |
| Parties | Bettina SCHWARTZ and Max Schwartz, Plaintiffs, v. Hyman TURKEN and Paula Turken, as Trustees, Defendants. Hyman TURKEN, as Trustee of Hyman Turken & Associates Profitsharing Trust, and as Trustee of Hyman Turken & Associates Pension Trust, Third Party Plaintiff, v. The CITY OF NEW YORK, Third Party Defendant. |
Howard B. Schnitzer, Flushing, for plaintiffs.
Steven D. Zerin, New York City, for defendants and third party plaintiff.
Elliott J. Mermelstein, Laurelton, for third party defendant.
I. Does the "pothole law" of the City of New York apply to a claim asserted against the City in a third party action?
II. Who has the burden of pleading that any written notice required by the "pothole law" was, or was not, given?
On September 16, 1980, plaintiff Bettina Schwartz fell on a sidewalk outside certain premises owned by defendants located in the City of New York and suffered personal injuries.
Plaintiffs brought an action against defendants for damages based upon the personal injuries suffered by plaintiff Bettina Schwartz. No action was brought by plaintiffs against the City of New York. On or about March 30, 1981, defendants commenced a third party action against the third party defendant City of New York without the service of any prior notice of claim. The City of New York, in its answer, alleged as an affirmative defense that "Plaintiffs and third party plaintiffs failed to comply with the written actual notice provisions of section 394a-1.0 of the Administrative Code of the City of New York, as amended."
The City of New York has made the instant motion " * * * for an order severing and dismissing the action as against the Third Party Defendant * * * " without stating, in its notice of motion, the grounds for such motion (see CPLR 2214(a)). In the moving affirmation submitted in support of its motion, it appears that the ground for this motion is section 394a-1.0 of the Administrative Code of the City of New York (known as the "pothole law" and which came into effect on June 4, 1980). The City of New York contends that compliance with this section is a prerequisite to maintaining the third party action. 1
Although a copy of the third party complaint was not submitted to the court, the parties have proceeded on the assumption that the third party complaint does not plead compliance with the pothole law.
Plaintiffs have appeared in support of the motion and also state that plaintiffs are proceeding upon the theory that the sidewalk's defect claimed to be the cause of the injury arose out of a negligent repair made by defendants.
Defendants, in opposition to the motion, point out that the City of New York has not submitted an affidavit made by a person with knowledge of the facts stating that "no written Notice had been received by the Commissioner of Transportation prior to this accident." Defendants argue that the motion should be denied since "there is an outstanding question of fact as to whether the third-party defendant was provided with requisite notice."
However, this is not a motion for summary judgment pursuant to CPLR 3212, and no party has sought to submit evidence that could properly be considered on a motion for summary judgment (CPLR 3211(c); Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970) such as a categorical statement by one having knowledge of the facts that proper written notice was, or was not, actually given.
It seems to be a motion to dismiss pursuant to CPLR 3211(a)7 on the ground that the third party complaint, which is a pleading (CPLR 3011), fails to state a cause of action by reason of the fact that it does not allege compliance with the pothole law. 2
A question is presented, then, as to whether a party asserting a claim against the City of New York coming within the purview of the pothole law has the burden of alleging that proper notice was given. Before reaching that general question, however, it must first be determined whether the pothole law is applicable at all in this case where the injured party is not making a claim against the City of New York, but a claim against the City of New York is asserted in a third party complaint.
Paragraph 2 of section 394a-1.0, subd. d of the Administrative Code of the City of New York states that "No civil action shall be maintained against the City for * * * injury to person * * * in consequence of any * * * sidewalk * * * being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice * * * was actually given * * *."
The court observes that a third party action, authorized by CPLR 1007, does not necessarily have to be tried in the main action. Where appropriate, the court may direct that it be tried separately (CPLR 1010; McCabe v. Queensboro Farm Products, Inc., 22 N.Y.2d 204, 209, 292 N.Y.S.2d 400, 239 N.E.2d 340; George Cohen Agency, Inc. v. Donald S. Perlman Agency, Inc., 69 A.D.2d 725, 731, 732, 419 N.Y.S.2d 584, affd. 51 N.Y.2d 358, 434 N.Y.S.2d 189, 414 N.E.2d 689). It may, therefore, have an independent existence as a "civil judicial proceeding" (CPLR 105(d)). As such, it is a civil "action" (CPLR 103(b)) within the meaning of paragraph 2 of section 394a-1.0, subd. d of the Administrative Code.
Even if it were argued that the pothole law is limited to tort actions and the third party action is one for apportionment, this would not change the result since even in such a case the liability of the City of New York would arise out of a violation of a duty it may have owed to plaintiffs. 3
In Barry v. Niagara Frontier Transit System, Inc., 35 N.Y.2d 629, 364 N.Y.S.2d 823, 324 N.E.2d 312, the Court of Appeals, in considering section 341-a of the Village Law, a statute containing words identical to those found in the pothole law as far as defective sidewalks are concerned--"No civil action shall be maintained * * * "--declared that the required written notice must be given in order to hold the village liable in a third party action seeking apportionment. The court reasoned that the claim against the village was based upon a violation of duty owed to the injured person to repair or remove a sidewalk or street defect within a reasonable time after written notice of a dangerous condition was actually given to the village.
That conclusion is equally applicable to the City of New York under section 394a-1.0 of the Administrative Code.
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