Walker v. Town of Hempstead

• Decision Date: 01 November 1994
• Citation: 618 N.Y.S.2d 758,643 N.E.2d 77,84 N.Y.2d 360
• Parties: , 643 N.E.2d 77 Charles WALKER et al., Respondents, v. TOWN OF HEMPSTEAD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 758

618 N.Y.S.2d 758

84 N.Y.2d 360, 643 N.E.2d 77

Charles WALKER et al., Respondents, v. TOWN OF HEMPSTEAD, Appellant.

Court of Appeals of New York.

Nov. 1, 1994.

Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick, Merril Schapiro Biscone and Christine M. Metzner, of counsel), for appellant.

DiJoseph, Portegello & Schuster, New York City (Arnold DiJoseph, III, of counsel), for respondents.

Lydia Rocissano Marola, Albany, and A. Kevin Crawford, for N.Y. State Conference of Mayors and Municipal Officials and another, amici curiae.

Schneider, Kleinick, Weitz, Damashek, Godosky & Gentile, New York City (Brian J. Shoot, of counsel), and Abraham Fuchsberg, for N.Y. State Trial Lawyers Ass'n, amicus curiae.

OPINION OF THE COURT

LEVINE, Judge.

Plaintiff commenced this personal injury action against the Town of Hempstead to recover for injuries sustained on a municipal paddleball court located at a Town beach area. The defendant Town moved for summary judgment on the ground that it had not been given prior written notice of any defective condition of the paddleball court as required by Town of Hempstead Code § 6-2. ¹ In opposition, plaintiff argued that to the extent Hempstead Code § 6-2 required notice of defect in connection with paddleball court accidents, it was inconsistent with General Municipal Law § 50-e(4), ² made applicable to towns pursuant to Town Law § 67, and therefore was beyond the Town's authority to enact local laws. Supreme Court granted defendant's motion and dismissed the complaint, perceiving no inconsistency between Hempstead Code § 6-2 and General Municipal Law § 50-e(4).

The Appellate Division reversed and reinstated the complaint (190 A.D.2d 364, 598 N.Y.S.2d 550), holding that while the two enactments were in fact inconsistent, the adoption of the local law fell within the Town's authority to supersede State laws under Municipal Home Rule Law § 10(1)(ii)(d)(3). Nonetheless, the Court ultimately found the local law invalid because of the Town's failure to substantially comply with the procedural requirements of Municipal Home Rule Law § 22. The Appellate Division granted leave to appeal to this Court and certified the following question: "Was the order of this court dated June 1, 1993, properly made?" While we agree with the Appellate Division that the Town failed to comply with Municipal Home Rule Law § 22, we affirm, and answer the certified question in the affirmative, primarily on another ground.

I.

The Municipal Home Rule Law authorizes every local government to adopt laws relating to its "property, affairs or government", so long as those enactments are not inconsistent with the Constitution or any general law (Municipal Home Rule Law § 10[1][i]; see, N.Y. Const., art. IX, § 2[c][i]. Also, counties, cities, towns and villages can adopt local laws in 14 other enumerated instances, provided that the legislation is not inconsistent with the Constitution or any general law or prohibited by State law (Municipal Home Rule Law § 10[1][ii]; see, N.Y. Const., art. IX, § 2[c][ii]; see also, Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 428-429, 548 N.Y.S.2d 144, 547 N.E.2d 346).

Because defendant is a Town, however, its enactment of a local law inconsistent with the Town Law may be permissible under Municipal Home Rule Law § 10(1)(ii)(d)(3), which confers express authority on towns to amend or supersede provisions of the Town Law in relation to matters as to which they are otherwise authorized to adopt local legislation under the Municipal Home Rule Law, "unless the legislature expressly shall have prohibited the adoption of such a local law" (Municipal Home Rule Law § 10[1][ii][d][3]; see, Kamhi v. Town of Yorktown, supra, at 429-430, 548 N.Y.S.2d 144, 547 N.E.2d 346). The general authority to enact notice of defect provisions has been held to fall under a local government's power to legislate relating to "[t]he presentation, ascertainment, disposition and discharge of claims against it" (Municipal Home Rule Law § 10[1][ii][a][5]; see, N.Y. Const., art. IX, § 2[c][ii][5] and "[t]he acquisition, care, management and use of its highways, roads, streets, avenues and property" (Municipal Home Rule Law § 10[1][ii][a][6]; see, N.Y. Const., art. IX, § 2[c][ii][6]; see also, Holt v. County of Tioga, 56 N.Y.2d 414, 452 N.Y.S.2d 383, 437 N.E.2d 1140; Fullerton v. City of Schenectady, 285 App.Div. 545, 138 N.Y.S.2d 916, aff'd 309 N.Y. 701, 128 N.E.2d 413). Since General Municipal Law § 50-e(4) is made applicable to towns pursuant to Town Law § 67, ³ the validity of Hempstead Code § 6-2 turns on whether it is inconsistent with General Municipal Law § 50-e(4) and, if so, whether the Legislature has expressly prohibited the adoption of such a local law so as to preclude the Town's supersession of so much of Town Law § 67 as incorporates General Municipal Law § 50-e(4).

II.

At the outset, we reject defendant's primary contention on this appeal and agree with the conclusion of the Appellate Division that Town of Hempstead Code § 6-2 is in fact inconsistent with General Municipal Law § 50-e(4). The local law--to the extent that it requires prior notice of defect for accidents at a Town "parking field, beach area", etc., as a condition precedent to the commencement of an action against the Town--is flatly inconsistent with the plain language of section 50-e(4) mandating that "[n]o other or further notice * * * shall be required as a condition to the commencement of an action", subject to an exception for notices of defect for six specific kinds of locations, none of which is applicable here. Defendant's proffered interpretation of this introductory clause of subdivision (4) as addressing only notices of claim and not notices of defect is belied by the Legislature's reservation of the named notice of defect requirements as exempt from the "[n]o other or further notice" provision in the introductory clause. We can presume that the Legislature would not have deemed it necessary to except those enumerated notice of defect provisions had it not intended notice of defect provisions to fall within the preceding general proscription (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 213 ["when there is a prohibition in general words and a saving of particular things, there is a strong implication that what is excepted would have been within the prohibition if it had not been excepted, and so the prohibitory words may receive a more comprehensive construction than they would otherwise have received"].

Furthermore, we can only construe the Legislature's enumeration of six, specific locations in the exception (i.e., streets, highways, bridges, culverts, sidewalks or crosswalks) as evincing an intent to exclude any others not mentioned (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 240 ["where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned"]. Although, as defendant points out, the statute retains the validity of the excepted notice of defect provisions "where such notice now is, or hereafter may be, required by law", the phrase "such notice" can only be interpreted as encompassing notices of defect at the six locations previously specified.

Plainly then, Hempstead Code § 6-2, in extending the Town's bar to the commencement of suit without prior notice of defect to defective conditions not within those authorized by General Municipal Law § 50-e(4), is inconsistent with that State law. As noted above, however, this inconsistency does not necessarily serve to invalidate the legislation if it can be found to fall within the Town's supersession authority under Municipal Home Rule Law § 10(1)(ii)(d)(3). That issue is dependent, in the first instance, on whether General Municipal Law § 50-e(4) expressly prohibits the adoption of local notice of defect laws pertaining to locations beyond the six enumerated therein (see, Municipal Home Rule Law § 10[1][ii][d][3]; Kamhi v. Town of Yorktown, 74 N.Y.2d 423, 430, n. 2, 548 N.Y.S.2d 144, 547 N.E.2d 346, supra ), which we next address.

III.

We find the conclusion inescapable, contrary to the Appellate Division, that General Municipal Law § 50-e(4), as made controlling over town notice statutes by Town Law § 67, does indeed contain an express prohibition against the adoption of the provisions of Hempstead Code § 6-2 requiring prior notice of defects at municipal locations other than the enumerated streets, highways, bridges, culverts, sidewalks or crosswalks. This express prohibition precludes the exercise of the Town's supersession authority under Municipal Home Rule Law § 10(1)(ii)(d)(3) (cf., Kamhi v. Town of Yorktown, supra, at 430, n. 2, 548 N.Y.S.2d 144, 547 N.E.2d 346 [although inconsistency existed...