Sniper v. City of Syracuse

• Decision Date: 07 July 1988
• Citation: Sniper v. City of Syracuse, 530 N.Y.S.2d 374, 139 A.D.2d 93 (N.Y. App. Div. 1988)
• Parties: Charles N. SNIPER, Jr., Appellant, v. CITY OF SYRACUSE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 374

530 N.Y.S.2d 374

139 A.D.2d 93

Charles N. SNIPER, Jr., Appellant, v. CITY OF SYRACUSE, Respondent.

Supreme Court, Appellate Division Fourth Department.

July 7, 1988.

James G. Distefano, Syracuse, for appellant.

C. Frank Harrigan by Lee Alcott, Syracuse, for respondent.

Before BOOMER, J.P., and GREEN, PINE, LAWTON and DAVIS, JJ.

LAWTON, Justice.

On April 28, 1982, plaintiff allegedly injured his back when the bus he was driving struck a depression in a roadway in the City of Syracuse. Plaintiff commenced suit to recover damages for these injuries on March 4, 1983. In his complaint, plaintiff alleged that the roadway was dangerous, defective, and unsafe because it was negligently designed, constructed, maintained, lighted, marked, and signed. Extensive pretrial discovery disclosed that the City's water department had performed certain repairs in the vicinity of the accident site in March 1979. Additionally, it was disclosed that on October 27, 1981 the City's transportation department had installed two "bump" signs at or near the point of the previous repairs.

Defendant moved for summary judgment initially contending that plaintiff's action was barred because there was no prior written notice of the alleged dangerous condition as required by Syracuse City Charter § 8-115. When confronted with proof that the City may have caused the dangerous condition complained of, the City admitted that there were factual questions in this regard, but contended that it was nevertheless entitled to summary judgment because the cause of action was barred by the Statute of Limitations set forth in General Municipal Law § 50-i, in that the acts of the City's water department and the City's highway department occurred more than one year and ninety days before plaintiff's action was commenced. In support of its contention, the City relied upon the holding of the Court of Appeals in Klein v. City of Yonkers, 53 N.Y.2d 1011, 1012-1013, wherein the court, in dismissing plaintiff's claim to recover damages founded upon the alleged wrongful issuance of a certificate of occupancy, stated:

"Section 50-i of the General Municipal Law requires that an action against a municipality for personal injury or property damage be commenced within one year and 90 days after 'the happening of the event upon which the claim is based.' In Erickson v. Town of Henderson (30 A.D.2d 282 ), a wrongful death case, this language was held to bar an action commenced more than one year and 90 days after the happening of the event causing death (30 AD2d, at p 286 ) even though the court acknowledged that under an accrual rule the action would have been timely (30 AD2d, at p 284 ). Since Erickson, courts have uniformly concluded that the limitation period begins to run upon the happening of the event, irrespective of when the action accrued (e.g., Doyle v 800, Inc., 72 AD2d 761 Phillips v Village of Waterford, 48 AD2d 745, 746 Cota v Madison Cent. School Dist., 89 Misc 2d 646 affd 62 AD2d 1083 ). In our view, the plain language of the statute admits of no other interpretation. If the statute is to be amended, that must be accomplished by legislative action and not judicial fiat" (Klein v. City of Yonkers, supra ).

Plaintiff, in opposing defendant's motion, argued that the period of limitations did not begin to run until the time of the accident. Special Term granted defendant's motion without a writing, citing Klein (supra) and this court's decision in Nebbia v. County of Monroe, 92 A.D.2d 724, 461 N.Y.S.2d 127, lv. denied 59 N.Y.2d 603, 463 N.Y.S.2d 1028, 450 N.E.2d 252. After the entry of the order appealed from, the Third Department, in an opinion by Justice Mikoll, reached a contrary result in a factual situation similar to this case ( see, Kiernan v. Thompson, 134 A.D.2d 27, 522 N.Y.S.2d 719).

Plaintiff on this appeal urges us to accept the Third Department's rationale in distinguishing Klein (supra) and Nebbia (supra). In Kiernan (supra) plaintiff was injured in a fall on a sidewalk in the City of Ithaca. The City moved for summary judgment dismissing plaintiff's personal injury action upon the ground that the negligent act which created the dangerous condition occurred more than one year and ninety days before commencement of the action. The court stated that plaintiff's complaint alleged two separate causes of action, both of which were timely commenced. The first cause of action was founded upon the alleged active negligence of the City in breaking up the sidewalk while City employees were working on nearby trees. That active negligence, the court held, "was a continuing act of negligence" which "occurred anew each day the condition continued" and consequently, the period of limitations governing any action founded upon such act did not begin to run until the...