Dominianni v Town/village of Harrison

[*1] Dominianni v Town/village of Harrison 2012 NY Slip Op 51928(U) Decided on October 5, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MOLIA and LaCAVA, JJ
2011-1599 W C.

Emil A. Dominianni, Respondent,

against

Town/village of Harrison, Appellant.

Appeal from a judgment of the Justice Court of the Town of Harrison, Westchester County (Ronald B. Bianchi, J.), entered November 10, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $807.11.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff alleges that defendant placed a portable sign upon a roadway on a windy day and that the sign blew over and struck plaintiff's vehicle. At the close of a nonjury trial, defendant moved for a trial order of dismissal on the ground that plaintiff had failed to provide it with prior written notice of the alleged defective condition as required by Village Code of Harrison § 32-1 and Town Code of Harrison § 201-41. The Justice Court denied the motion and awarded plaintiff judgment in the principal sum of $807.11.

The aforementioned provisions of the Village Code of Harrison and the Town Code of Harrison, requiring prior written notice of a defective condition of a sign in order to maintain a civil action against the Village and/or Town for injuries or damages caused by such sign, conflict with, and are invalidated by, General Municipal Law § 50-e (4) to the extent that they require prior written notice of defective conditions other than those existing on a "street, highway, bridge, culvert, sidewalk or crosswalk" (General Municipal Law § 50-e [4]; see Walker v Town of Hempstead, 84 NY2d 360 [1994]; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362 [1966]; Fitzpatrick v Barone, 215 AD2d 351 [1995]; see also Village Law § 6-628; cf. Poirier v City of Schenectady, 85 NY2d 310 [1995]). As the sign that caused the damage to plaintiff's vehicle did not constitute a physical defect in the surface of a street, highway, bridge, culvert, sidewalk or crosswalk, plaintiff was not required to give prior written notice to defendant of the alleged defective condition of the sign in order to commence this action (see generally Doremus, 18 NY2d at 366).

We note that while the court permitted the introduction of some arguably
hearsay evidence at trial, its determination did not rest wholly upon such
evidence. Consequently, the judgment rendered substantial justice in accordance
with the rules and principles of substantive law (UJCA 1804, 1807; Zelnik v Biderman Indus, [*2]USA, 242 AD2d 227, 228 [1997]; Levins v Bucholtz, 2 AD2d 351 [1956]).

Accordingly, the judgment is affirmed.

Iannacci, J.P., Molia and LaCava, JJ., concur.
Decision Date: October 05, 2012