Vise v. County of Suffolk

• Decision Date: 01 August 1994
• Parties: Claire VISE, Appellant, v. COUNTY OF SUFFOLK, Defendant, The Town of Babylon, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 429

615 N.Y.S.2d 429

207 A.D.2d 341

Claire VISE, Appellant, v. COUNTY OF SUFFOLK, Defendant, The Town of Babylon, Respondent.

Supreme Court, Appellate Division,

Second Department.

Aug. 1, 1994.

Charles F. McMorrow, Dix Hills, for appellant.

Martin, Fallon & Mulle, Huntington, (Larry M. Shaw, on the brief), for respondent.

Before RITTER, J.P., and PIZZUTO, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 31, 1992, as granted the motion of the Town of Babylon for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On February 19, 1985, the plaintiff was injured on a Town of Babylon roadway when she fell after stepping into an eroded area abutting a catch basin or sewer cover. Town of Babylon § 158-1 provides that "[n]o civil action shall be maintained against the Town * * * for damages or injuries to person * * * sustained by reason of any highway * * * being defective * * * unless written notice of such defective * * * condition * * * was actually given to the Town Clerk or the Superintendent of Highways." Contrary to the plaintiff's contention, the erosion complained of constituted a defective condition within the meaning of the Town Code and, thus, the notice requirement applies here. Moreover, the record is devoid of any indication that the Town had received prior written notice of the defective condition prior to the plaintiff's accident.

Furthermore, this case does not fall within the recognized exceptions to the notice requirement. The record indicates the erosion of the roadway around the catch basin was not caused by the Town but, rather, was the result of natural causes (see, Michela v. County of Nassau, 176 A.D.2d 707, 574 N.Y.S.2d 965). Similarly, the plaintiff's claim does not fall within the special use exception to the subject notice requirement (see, Giacotto v. New York City Tr. Auth., 150 Misc.2d 164, 168, 566 N.Y.S.2d 450), in that the drainage function of the catch basin served to provide for the proper maintenance of a safe roadway and, thus, served no municipal function inuring to the special benefit of the Town (see, Giacotto v. New York City Tr. Auth., supra, at 164, 566 N.Y.S.2d 450; see also, Marona v. Incorporated Vil. of Mamaroneck, 203 A.D.2d...