Selca v. City of Peekskill

• Decision Date: 30 November 2010
• Parties: Mark SELCA, respondent, v. CITY OF PEEKSKILL, et al., appellants.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 287

78 A.D.3d 1160

Mark SELCA, respondent,

v.CITY OF PEEKSKILL, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 30, 2010.

William J. Florence, Jr., Peekskill, N.Y., for appellants.

Salzman & Winer, LLP, New York, N.Y. (Mitchell G. Shapiro of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), dated August 31, 2009, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint is granted.

The plaintiff claims that he sustained injuries when he tripped or slipped and fell while walking on a floating dock owned and operated by the defendants, and that the accident was caused by a design defect. The plaintiff correctly contends that the defendantsmay not assert, as a defense, the lack of prior written notice of the purportedly defective condition. The Town of Peekskill City Charter, § C 199 provides, in relevant part, that "[n]o civil action shall be maintained against the city for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk, crosswalk, grating, opening, drain, sewer, public parking area, playgrounds or pathways being defective, out of repair, unsafe, dangerous or obstructed," unless the City received prior written notice of the alleged defective condition (City of Peekskill City Charter § C 199). "It is axiomatic that prior written notice laws are in derogation of the common law and must be strictly construed" ( Windsor Ct. Assoc., LP v. Village of New Paltz, 27 A.D.3d 814, 815, 809 N.Y.S.2d 477; see also Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104). The facility where this accident occurred, a floating dock, does not fall within the ambit of the City of Peekskill prior written notice statute ( see Sobotka v. Zimmerman, 48 A.D.3d 1260, 1261, 851 N.Y.S.2d 786; Smith v. Village of Hancock, 25 A.D.3d 975, 976-977, 809 N.Y.S.2d 589; see also Staudinger v. Village of Granville, 304 A.D.2d 929, 929-930, 758 N.Y.S.2d 415).

However, the evidence demonstrated that the defendants are entitled to qualified immunity with respect to the plaintiff's causes of action based on the allegedly improper design of the dock. "The doctrine of qualified governmental immunity serves to preclude second-guessing relating to the considered planning decisions of governmental bodies" ( Jackson v. New York City Tr. Auth., 30 A.D.3d 289, 290, 818 N.Y.S.2d 32; see Weiss v. Fote, 7 N.Y.2d 579, 584-586, 200 N.Y.S.2d 409, 167 N.E.2d 63). A municipality is entitled to qualified immunity where its planning body has " 'entertained and passed on the very same question of risk' that plaintiff would put to a jury, and has adopted a policy with respect thereto that has a ...