Zash v. County of Nassau

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Zash v. County of Nassau, 567 N.Y.S.2d 299, 171 A.D.2d 743 (N.Y. App. Div. 1991)
• Decision Date: 11 March 1991
• Parties: Bess D. ZASH, Respondent, v. COUNTY OF NASSAU, Appellant.

Page 299

567 N.Y.S.2d 299

171 A.D.2d 743

Bess D. ZASH, Respondent, v. COUNTY OF NASSAU, Appellant.

Supreme Court, Appellate Division Second Department.

March 11, 1991.

Robert W. Schmidt, County Atty., Mineola (Gerald R. Podlesak, of counsel), for appellant.

R. Brock Gerson, West Hempstead, for respondent.

Before THOMPSON, J.P., and BROWN, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant County of Nassau appeals from a judgment of the Supreme Court, Nassau County (Burke, J.), dated June 2, 1989, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $37,500.

ORDERED that the judgment is reversed, on the law, with costs, and the action is dismissed.

The plaintiff sustained injuries when she fell because of a defective condition existing in a sidewalk adjacent to a county road in the Town of Hempstead in Nassau County. The County of Nassau, in its appeal from the judgment in favor of the plaintiff, contends that the Supreme Court should have dismissed the complaint upon motion due to the plaintiff's failure to provide proof of prior written notice of the defect in the sidewalk as required by Nassau County Administrative Code § 12-4.0(e). That section, as it existed at the time of the accident, provided that: "No civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk, curb or gutter located on a county road outside of incorporated villages and cities being defective * * * unless written notice of such defective * * * condition of such sidewalk, curb or gutter * * * was actually given to the commissioner of public works and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect".

The plaintiff responds that Nassau County Administrative Code § 12-4.0(e) must be construed in accord with Highway Law § 139(2) which allows for tort recovery based on constructive notice where written notice is lacking. Thus, she avers that the Supreme Court properly instructed the jury relative to actual notice and constructive notice and refused to charge the provisions of Nassau County Administrative Code § 12-4.0(e).

Resolution of this issue turns on certain principles of statutory construction. Legislative enactments requiring prior written notification, being in derogation of common law, should be strictly construed (see, e.g., Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 918, 550 N.Y.S.2d 257, 549 N.E.2d 459; Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 366, 275 N.Y.S.2d 505, 222 N.E.2d 376; Englehardt v. Town of Hempstead, 141 A.D.2d 601, 602, 529 N.Y.S.2d 523). Thus, the courts are cautioned against broadening a statute by judicial legislation (see, Johnstown Leather Corp. v. City of Gloversville, 56 A.D.2d 345, 347, 393 N.Y.S.2d 89). However, a statute should not be given a strained interpretation to defeat its obvious intent (see, Englehardt v. Town of Hempstead, supra; Johnstown Leather Corp. v. City of Gloversville, supra ). The statute in issue expressly related to sidewalks, curbs or gutters. It made no reference to highways, bridges or culverts as does Highway Law § 139(2). While sidewalks have been held to be within the meaning of the term highway (see, Combs v. Incorporated Vil. of Freeport, 139 A.D.2d 688, 527 N.Y.S.2d 443; Williams v. State of New York, 34 A.D.2d 101, 104, 309 N.Y.S.2d 795; see, generally, 64 NY Jur 2d, Highways, Streets and Bridges, §§ 1, 6), it is noteworthy that the statutory notice provisions of Second Class Cities Law § 244, Village Law § 6-628 and Town Law § 65-a, which are substantially similar to the statute at issue, make specific reference to sidewalks as distinct from streets or highways. Unlike those provisions, Highway Law § 139(2) makes no express reference to sidewalks. Thus, it cannot be said that the Legislature intended to extend the County's liability for injuries resulting from defective sidewalks by allowing for constructive notice rather than written notice of the alleged defect. A well-known principle of statutory interpretation is that the specific mention of one thing implies the exclusion of other things (see, McKinney's Cons.Laws of N.Y., Book 1, Statutes § 240; Strauch v. Town of Oyster Bay, 263 A.D. 833, 31 N.Y.S.2d 534). The Legislature could have specifically included sidewalks within the classes of defects for which the constructive notice requirement was applicable. It did not. Highway Law § 139 is a general law because it applies to all counties in the State (see, Holt v....