Walker v. Town of Hempstead

• Decision Date: 01 June 1993
• Citation: 598 N.Y.S.2d 550,190 A.D.2d 364
• Parties: Charles WALKER, et al., Appellants, v. TOWN OF HEMPSTEAD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 550

598 N.Y.S.2d 550

190 A.D.2d 364

Charles WALKER, et al., Appellants, v. TOWN OF HEMPSTEAD, Respondent.

Supreme Court, Appellate Division Second Department.

June 1, 1993.

DiJoseph, Portegello & Schuster, New York City (Arnold E. DiJoseph and Alan H. Greenberg, of counsel), for appellants.

Rivkin, Radler, Bayh, Hart & Kremer, Uniondale (Edward J. Hart, Evan H. Krinick and John M. Denby, of counsel), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, O'BRIEN and COPERTINO, JJ.

BRACKEN, Justice Presiding.

In this case, the plaintiffs argue that a local "notice of defect" law (Local Laws, 1988, No. 90 of Town of Hempstead [hereinafter Town of Hempstead Code § 6-2] is inconsistent with a general law of State-wide applicability (General Municipal Law § 50-e[4], and that the local law is, therefore, invalid. The defendant Town of Hempstead argues that no such inconsistency exists. We conclude that the terms of the two enactments are indeed inconsistent, but that this circumstance alone does not render the local law invalid. The Town of Hempstead may supersede State law in this area (see, Municipal Home Rule Law § 10[1][ii][d][3], but only upon substantial compliance with the procedures outlined in Municipal Home Rule Law § 22(1). Because such compliance has not been alleged or proven in this case, we reverse the judgment of the Supreme Court and deny the Town's motion for summary judgment.

On May 17, 1987, the plaintiff Charles Walker was injured on a municipal paddleball court at Malibu Beach Club. He later brought the present personal injury action against the Town of Hempstead, which owns the property.

The defendant Town moved for summary judgment on the basis that pursuant to a local law (Town of Hempstead Code § 6-2), the Town could not be subject to liability on account of the allegedly dangerous paddleball court because the Town had not been given prior written notice of any defect. The plaintiff opposed the motion, arguing that the Town's local law, to the extent that it requires prior written notices of defect in connection with paddleball court accidents, is inconsistent with General Municipal Law § 50-e(4).

The Supreme Court granted the motion for summary judgment and dismissed the complaint. The court, citing Klimek v. Town of Ghent, 71 A.D.2d 359, 423 N.Y.S.2d 517, and Rich v. Town of Queensbury, 88 A.D.2d 1027, 451 N.Y.S.2d 903, held that there was no inconsistency between the local law and the general State law now under review. This appeal by the plaintiff followed.

The local law under review in this case (Town of Hempstead Code § 6-2) provides as follows:

" § 6-2. Damages due to certain town property being defective; notice to town required.

"No civil action shall be maintained against the Town of Hempstead for damages or injuries to persons or property sustained by reason of any defective parking field, beach area, swimming or wading pool or pool equipment, playground or playground equipment, skating rink or park property, no matter where situated, being defective, out-of-repair, unsafe, dangerous or obstructed unless written notice of, by the witness to, the defective, unsafe, dangerous or obstructed condition of such parking field, beach area, swimming or wading-pool or pool equipment, playground or playground equipment, skating rink or park property was actually served upon the Town Clerk in accordance with § 6-4 hereof and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of. Under no circumstances shall the Town of Hempstead be liable for injuries or damages to persons or property due to defective conditions of the aforesaid town property in the absence of such prior written notice to the town of the existence of the defective condition causing said injuries or damages".

It is the plaintiff's essential argument that this local law is invalid insofar as it is inconsistent with the terms of General Municipal Law § 50-e(4), which governs notices of claim. General Municipal Law § 50-e(4) provides as follows:

"4. Requirements of section exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice, no other or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice" (emphasis supplied).

As emphasized by the plaintiff on appeal, this statute can be read so as to provide that "no other or further notice [other than the notice of claim] * * * shall be required as a condition to the commencement of an action * * * [except that notices of defect are allowed with respect to any accidents which occur on] any street, highway, bridge, culvert, sidewalk or crosswalk". So read, this statute would invalidate any local law which requires the service or filing of a written notice of defect as a condition precedent to municipal tort liability in cases of accidents which arise out of allegedly defective municipal properties, when the properties in question do not constitute highways, streets, bridges, culverts, sidewalks, or crosswalks.

General Municipal Law § 50-e(4) applies to towns (as does the remainder of General Municipal Law § 50-e for that matter) by virtue of Town Law § 67, which provides as follows:

" § 67. Presentation of claims for torts: actions against towns

"1. Any claim including a claim specified in section sixty-five-a of this chapter which may be made against the town or town superintendent of highways for damages for wrong or injury to person or property or for the death of a person, shall be made and served in compliance with section fifty-e of the general municipal law.

"2. Every action upon such claim shall be commenced pursuant to the provisions of section fifty-i of the general municipal law.

"3. This section shall not apply to actions upon claims for damages or compensation for property taken by condemnation for any public purpose" (emphasis supplied).

The plaintiff's argument that Town of Hempstead Code § 6-2 is invalid because it appears to contradict the terms of General Municipal Law § 50-e(4) is based on the assumption that all local laws must conform to State laws of general applicability. However, there are certain cases in which local governments may supersede State laws. Municipal Home Rule Law § 10(1)(ii)(d)(3) provides that a town government may supersede the provisions of the Town Law (e.g., Town Law § 67) in defined circumstances. Specifically, Municipal Home Rule Law § 10(1)(ii)(d)(3) states that a town government may enact a local law relating to:

"(3) The amendment or supersession in its application to it, of any provision of the town law relating to the property, affairs or government of the town or to the other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law. Unless authorized by other state statute this subparagraph shall not be deemed to authorize supersession of a state statute relating to (1) a special or improvement district or an improvement area, (2) creation or alteration of areas of taxation, (3) authorization or abolition of mandatory and permissive referendum or (4) town finances as provided in article eight of the town law; provided, however that nothing set forth herein shall preclude the transfer or assignment of functions, powers and duties from one town officer or employee to another town officer or employee, and provided, however, further that the powers of local legislation and appropriation shall be exercised by the local legislative body" (emphasis supplied).

This statute authorizes a town board, by local law, to supersede so much of Town Law § 67 as incorporates the restrictive provisions of General Municipal Law § 50-e(4) unless it appears that the Legislature has "expressly * * * prohibited" such supersession (Municipal Home Rule Law § 10[1][ii][d][3].

Municipal Home Rule Law § 22(1) sets forth certain formal requirements which are to be followed whenever a local government purports to preempt the terms of a State statute. This provision states as follows:

"1. In adopting a local law changing or superseding any provision of a state statute or of a prior local law or ordinance, the legislative body shall specify the chapter or local law or ordinance, number and year of enactment, section, subsection or subdivision, which it is intended to change or supersede, but the failure so to specify shall not affect the validity of such local law. Such a superseding local law may contain the text of such statute, local law or ordinance, section, subsection or subdivision and may indicate the changes to be effected in its text or application to such local government by enclosing in brackets, or running a line through, the matter to be eliminated therefrom and italicizing or underscoring new matter to be included therein".

Municipal Home Rule Law § 10(1)(ii)(d)(3) is to be read in the context of the general home rule provisions of the New York State Constitution (N.Y. Const., art. 9, § 2[c][ii] and the parallel...