Hall v City Fence, Inc.

[*1] Hall v City Fence, Inc. 2012 NY Slip Op 51694(U) Decided on August 30, 2012 Supreme Court, Erie County NeMoyer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2012
Supreme Court, Erie County

Mary J. Hall and Fillmore V. Hall, Plaintiffs, .

against

City Fence, Inc., BUFFALO OFF LEASH AREA, INC., BUFFOLA, INC., BUFFALO MICRO PARKS, INC., CITY OF BUFFALO, BUFFALO WATER AUTHORITY, ERIE COUNTY, ERIE COUNTY PARKS DEPARTMENT, DR. R. REED STEVENS, and NIAGARA FRONTIER VETERINARY SOCIETY, INC., Defendants.



2009/11259



MARK C. DAVIS, ESQ., for Plaintiffs

MATTHEW J. DUGGAN, ESQ., for Defendant City Fence, Inc.

JESSIE B. BALDWIN, ESQ., for Defendant County of Erie (sued

as Erie County and Erie County Parks Department)

STEVEN P. CURVIN, ESQ., for Defendant Stevens

JOHN J. HANNIBAL, IV, M.D., ESQ., for Defendants City of

Buffalo and Buffalo Water Authority

Patrick H. NeMoyer, J.

PAPERS CONSIDERED:The NOTICE OF MOTION of Defendants City of Buffalo andBuffalo Water Authority;

the supporting AFFIRMATION of John J. Hannibal, IV, M.D., Esq.,with annexed exhibits;

the MEMORANDUM OF LAW of Defendants City of Buffalo andBuffalo Water Authority;

the opposing AFFIRMATION of Mark C. Davis, Esq., withannexed exhibits;

the MEMORANDUM OF LAW of Plaintiffs;

the NOTICE OF CROSS[ ]MOTION of Defendant County of Erieand the supporting AFFIRMATION of Jessie B. Baldwin, Esq.,with annexed exhibits; [*2]

the MEMORANDUM OF LAW IN OPPOSITION TO THE CITY OFBUFFALO'S MOTION FOR SUMMARY JUDGMENT AND INSUPPORT OF THE COUNTY OF ERIE'S CROSS[ ]MOTION

FOR SUMMARY JUDGMENT;

the further opposing AFFIRMATION of Mark C. Davis, Esq., withannexed exhibits;

the further MEMORANDUM OF LAW of Plaintiffs;

the REPLY MEMORANDUM TO RESPONSES OPPOSING

CITY'S MOTION FOR SUMMARY JUDGMENT; and

the AFFIRMATION [of John J. Hannibal, IV, M.D., Esq.] INSUPPORT OF CITY'S REPLY MEMORANDUM.

By this action, plaintiffs seek damages for personal injuries sustained by then 63-year-old Mary J. Hall (hereinafter plaintiff; the claim of Fillmore V. Hall is derivative) as a result of a mishap involving the gateway in the temporary fencing erected around a temporary dog park (hereinafter the dog park [FN1]) established on the grounds of Lasalle Park (also referred to as the park or parkland) in the City of Buffalo. The accident, which resulted in a fracture of plaintiff's right ankle and other alleged injuries, occurred on the morning of October 12, 2008 as plaintiff was exiting the dog park with her pets. In doing so, plaintiff evidently tripped over and fell on a horizontal metal bar that lay a few inches above the ground and that formed the bottom of a particular section of temporary fence through which the gate led, and it may be that the gate then closed upon plaintiff. In bringing this action against various defendants, plaintiff's original and amended complaint and various bills of particulars allege the responsibility and negligence of all of them for "failing to design, construct, install, and maintain the entryway gate in a reasonably safe manner," including "in installing a temporary gate in such a manner that a lower bar was raised to an unreasonable height[,] causing a tripping hazard; . . . in installing an entryway gate with an unsuitable latch mechanism; [and] in failing to provide a double-gated entryway gate necessary due to the nature of the park." Plaintiff further alleges the negligence of some of the actors, presumably including the municipal defendants, in failing to properly and adequately control, supervise, train, and inspect the work carried out by some of the other defendants, presumably including the private individuals/entities sued by plaintiff. The amended complaint further alleges the vicarious liability of the defendants for the conduct of other persons or entities.

The record on the instant and a prior set of motions demonstrates that the dog park had been established by a group of private citizens, including two who purportedly acted in the name of the former defendant Niagara Frontier Veterinary Society, Inc. (the Veterinary Society) in certain dealings with the responsible governmental entities. The two individuals who so acted were a non-party named McCarthy and defendant Reed Stevens, then president of the Veterinary Society. Lasalle Park is owned in fee by defendant City of Buffalo (the City), but at the time of the accident it was among a number of City parks contractually "operate[d], maintain[ed], and manage[d]," by defendant County of Erie [FN2] (the County), [*3]which had the corresponding contractual "power, discretion, and responsibility to provide routine repairs, regulate special events and permitted uses, . . . and generally exercise the same day-to-day powers, responsibilities and duties [in the City parks as] it does with respect to County-owned parks." The City, in contrast, primarily bore the contractual obligation to "maintain, repair, and replace" the "capital assets" and "improvements" in its parks, although the removal and/or replacement of existing capital assets, as well as the construction of new capital assets, was supposed to be with the concurrence of the County. All of that was in accordance with the written "Intermunicipal Cooperation Agreement for Operation, Management, and Improvement of City of Buffalo Park Lands" (Intermunicipal Agreement) entered into by the City and County in July 2004 pursuant to their authority under General Municipal Law § 119-o. As originally drafted, the Intermunicipal Agreement has a term of 15 years unless it is sooner terminated by either of the municipalities (on one year's notice to the other). It is now revealed to this court that the Intermunicipal Agreement was amended by the effect of a Consent Agreement entered into by the City and County sometime after October 28, 2008 and perhaps as recently as December 31, 2009 (i.e., after plaintiff's accident).

Pursuant to its power and responsibility to "regulate special events and permitted uses" in the park, the County issued a park use permit on June 27, 2007 to allow the erection of "temporary fencing" for a "temporary off-leash area," i.e., a dog park. That initial permit was good for a single day, July 8, 2007, and was issued to the Veterinary Society, Stevens, and McCarthy. Apparently that one-day experiment with the concept of a dog park proved to be such a success with the public that the County on July 26, 2007 issued a second permit to the Veterinary Society, Stevens, and McCarthy to again establish and operate the dog park. That second permit was to be good from July 25 through October 15, 2007. However, near the expiration of that three-month period, a well publicized decision was made by higher-ups in both City and County government to allow the dog park and its temporary fencing to remain in place and to continue to be used by the public for an indefinite period, apparently without the necessity of any new permit. Thus, the temporary fencing and gate were still in place, and the dog park still in use, on the occasion of plaintiff's fall nearly one year later.

The record establishes that the temporary fencing, including the section containing the gate, was owned, fabricated, and installed by defendant City Fence. The temporary fencing was installed for the purpose of bridging two existing fences in a corner of the park and thereby fully enclosing that area (an underutilized ballfield) for use as a dog park. Actually, there were two such temporary fence installations, one preceding the single-day experiment and the other coinciding with the later re-establishment of the dog park pursuant to the three-month (but later indefinitely extended) permit. The involvement of City Fence with the dog park was the result of the prior acquaintance and certain telephonic dealings and possibly one face-to-face, on-site meeting between Stevens and Frank Hewson, the late commercial sales manager for City Fence. In first erecting the temporary fence for the dog park prior to July 8, 2007, in removing it thereafter, and reinstalling it a few weeks after that, City Fence imposed a single rental charge apparently paid by Stevens. Still later, when Stevens called City Fence to inquire whether the temporary fencing could remain in place after October 2007, he was told yes but was not charged further.

In commencing this action, plaintiff named various defendants, initially including the City and County. Plaintiff later obtained leave to amend her complaint to name additional defendants, including City Fence and Stevens. Other defendants, however, including the Veterinary Society and three corporate entities apparently formed for the purpose of establishing and operating the permanent dog park now located elsewhere in Lasalle Park, have been let out of the case either by stipulation or unopposed motion. Thus, the defendants in the action now include City Fence, Stevens, the County, and the City.

Previously, by its Decision and Order of March 2012, this Court denied the respective motions of [*4]Stevens and the County for summary judgment dismissing the amended complaint and any cross claims against them. In rendering that decision, this Court concluded, inter alia, that Stevens bore potential liability to plaintiff as the permitee/occupant of the dog park and as the procurer of the temporary fencing, irrespective of the fact that the temporary fencing had been erected by City Fence, an independent contractor. The Court further rejected, inter alia, the County's argument that it could not be held liable for the allegedly dangerous or defective condition of the park inasmuch as it did not own the park and had not entirely displaced the City's maintenance and repair responsibilities pursuant to the Intermunicipal Agreement. The Court had no occasion to address on the prior decision whether plaintiff's claim against the County was subject to a written notice of defect requirement; no such argument was then made by the County (although a defense along that line had been pleaded by the County in its original answer). The Court's prior Decision and Order is now on appeal by the County and Stevens, scheduled for argument next month.

Now before the Court is a motion by the City for summary judgment dismissing the amended complaint and any cross claims against it, as well as a second motion for summary judgment by the County. In support of its motion, the City argues: 1) that, although the park is owned by the City, the City owed no duty to plaintiff to maintain the park in a reasonably safe condition because all such maintenance responsibilities had been delegated to the County pursuant to the Intermunicipal Agreement;[FN3] 2) that the City has no liability to plaintiff inasmuch as it had no involvement with the design and construction of the allegedly defective dog park fencing, which was installed by an independent contractor; 3) that the City had no duty to warn plaintiff of the open and obvious condition of the dog park and its fencing; and 4) that the complaint must be dismissed for plaintiff's failure to plead and prove compliance with the City's written notice of defect requirement. The City's motion is opposed by plaintiff and (for the most part) by the County. However, in moving anew for summary judgment, the County now argues that plaintiff has failed to plead and prove compliance with the County's written notice of defect requirement. The County's motion is opposed by plaintiff. Upon its consideration of the parties' respective submissions, this Court renders the following determinations:

AS OWNER OF LASALLE PARK, THE CITY HAD A DUTY TO MAINTAIN IT, INCLUDING ITS DOG PARK, IN A CONDITION REASONABLY SAFE FOR USERS:

In previously ruling on the County's motion for summary judgment dismissing the complaint against it for lack of duty, this Court framed the issue as whether the County, despite its non-ownership of the park, "conceivably b[ore] liability to plaintiff for the manner in which the park was maintained, a proprietary function (see generally Caldwell v Village of Island Park, 304 NY 268, 273 [1952])." This Court went on to say, "Of course, liability for the defective or dangerous condition of real property runs not merely against the landowner (in this case, the City), but also against those entities or individuals exercising or making occupancy, possession, control, or special use of the property (see Ruddell v Brown, 32 AD3d 1212, 1213 [4th Dept 2006]; Clifford v Woodlawn Volunteer Fire Co., Inc., 31 AD3d 1102 [4th Dept 2006]; see also Balsam v Delma Eng'g Corp., 139 AD2d 292, 296 [1st Dept 1988], lv dismissed in part and denied in part 73 NY2d 783 [1988])," i.e., the County and Stevens (parenthetical matter in original). The Court then referenced the rule defining the duty of a landowner as requiring the exercise of reasonable care taking into account the likelihood and potential seriousness of injury to others and [*5]the burden of avoiding such risk to maintain the premises in a condition reasonably safe for the use of those foreseeably thereon (see Basso v Miller, 40 NY2d 233, 241 [1976]; Scurti v City of New York, 40 NY2d 433, 440-442 [1976]).

In now seeking summary judgment, the City contends that, although it is the undisputed owner of the parkland in question, the City's sole responsibility, as set forth in its Intermunicipal Agreement with the County, was to maintain the capital assets of the park, i.e., its permanent fixtures and improvements, meaning that the City had no duty to maintain the temporary dog park and its entranceway where plaintiff sustained her injury.

The Court well understands that it is possible for a landowner to completely delegate its responsibility to maintain its premises for the protection of the public — the Court is aware, in other words, that there is such a thing as an absentee or out-of-possession landlord. However, as the Court reads the 2004 Intermunicipal Agreement between the City and the County (as well as those entities' 2008 Consent Agreement), the Court cannot liken the City to an absentee landlord or otherwise conclude that the City was out of possession of its parkland as a consequence of its having assertedly completely delegated all of its park maintenance responsibilities to the County for the duration of the Intermunicipal Agreement.[FN4]

At the outset of this discussion, it must be made clear that the City cannot be deemed to have been acting as a landlord at all in the situation, let alone an absentee landlord, inasmuch as the City was not receiving rent from the County for its occupancy of the City's parks. Rather, it was the City that was paying the County for its management of the City's parks. To its credit, the City acknowledges the foregoing. Beyond that, a reading of the Intermunicipal Agreement dispels any notion that the City was totally out of possession of its parkland and utterly without landowner responsibility with regard to its reasonably safe management, operation, and maintenance. In the first instance, the City's concession that it retained explicit maintenance responsibility with regard to the park's capital assets by itself discloses that the City was nothing like an absentee owner of Lasalle Park. Beyond that, and even though the temporary dog park fencing was (unlike, say, the ground beneath it) not a capital asset of the park,[FN5] the [*6]Intermunicipal Agreement simply cannot be read as having worked a complete delegation of the City's park maintenance and other operational responsibilities to the County. One of initial recitals set forth in the Intermunicipal Agreement was that it was "in the best interest of the residents of the City of Buffalo and the County of Erie that the operation, management and improvement of the City parklands be undertaken in the cooperative manner by the City and the County." Further according to that agreement, even during the County's period of operation and management of the parklands, the City continued to have a right to renew or terminate any existing lease, permit, license, or concession in the park. Further, the City had the contractual right to audit the County's revenues and expenses relating to its operation, management, and improvement of the park. The Agreement further provided that the City and the County would establish a joint oversight committee to periodically review the operation of the parklands, as well as a special events committee to jointly review special events permit applications submitted to either municipality. Further, the Agreement provided that each municipality would self-insure for liability with regard to the "County's and the City's respective activities with regard to the operation, management and improvement of the City's parklands." The Intermunicipal Agreement moreover provided (however strangely and illogically) that each municipality would defend, indemnify, and hold harmless the other, as well as its agents, employees and representatives, against all claims resulting directly or indirectly from the City's ownership of the parks and/or the municipalities' allocated maintenance responsibilities over them. Finally, and not incidentally, the Intermunicipal Agreement clearly provided for its early termination by either the City or the County on one year's written notice to the other, in which event the City was to enjoy or realize its remainder-like or reversionary-like interest [FN6] in the parklands.

Under the circumstances, the Court must conclude that despite the County's contractually assumed role in operating, maintaining, and managing the City parklands, the City continued to have ownership and operational responsibilities with regard to its parklands, including the responsibility of assuring that the parks were maintained in a condition in a reasonably safe for users of the park. More to the point at hand, nothing in the Intermunicipal Agreement can be regarded as having transferred onto the County all of the City's potential tort liability for the maintenance of its parklands in a dangerous condition. In that connection, the Court must note that although the Intermunicipal Agreement has been in effect since 2004, and although the City must have been sued any number of times for injuries allegedly caused by defective conditions in City parks since that date (this Court personally has presided over several such cases), the City has not cited this Court to a single decision holding that the City has no duty or tort liability with regard to the safe operation or maintenance of its parklands since July 1, 2004. The absence of any such legal authority speaks volumes, this Court feels, about the validity of the City's current contention that it has completely delegated away its maintenance responsibilities and liabilities with regard to City parklands.

The City further argues that it played no part in the design or construction of the temporary dog park fencing, which was designed and constructed by an independent contractor for whose fault the City cannot be held liable (see generally Brothers v New York State Elec. and Gas Corp., 11 NY3d 251, 257 [2008]; Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; Niagara Mohawk Power Corp. v Ferraro, 299 AD2d 910 [4th Dept 2002]). First, as the Court made clear in its prior decision, and despite the amended complaint's repeated references to "vicarious liablility" and "respondeat superior," this case is not fundamentally about the municipalities' alleged liability for the fault of any other person or entity. [*7]Instead, plaintiff primarily seeks to hold the parties clearly including the City — liable only for their own tortious acts or omissions in allowing the park to be in an unreasonably dangerous condition. The Court acknowledges the abundant evidence tending to show that the City did not play an actual part in the selection and erection of the temporary fencing around the dog park,[FN7] although the Court would hesitate to label Stevens or City Fence as "independent contractors" of the City, given the complete lack of any contractual relationship between the City and those other defendants. Nonetheless, it is not a requirement for the imposition of landowner liability against the City that the City have played an affirmative role in the creation of the allegedly defective or dangerous condition of the City property. In the law of premises liability, there are not two lines of cases the one covering "do it yourself" owners (and holding them responsible for the condition of their properties), and the other pertaining to landowners who suffer or permit others, including independent contractors, to create conditions on their properties (and absolving such landowners as a class from all liability on that basis alone). To be sure, there is a line of cases that concerns what liability entails when a person is injured on premises belonging to one defendant and where the allegedly defective or dangerous condition is attributable to the conduct of a second defendant, a nonowner of the premises. However, those cases are fundamentally about whether the injured plaintiff may seek to impose liability upon the independent contractor for its alleged lack of due care notwithstanding its lack of ownership status (see e.g. Church v Callanan Indus., 99 NY2d 104, 111-114 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136, 138-141 [2002]; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586-590 [1994]). Those cases are decidedly not about whether — and they certainly do not hold that — a plaintiff is forbidden to sue the landowner, here the City, merely because the allegedly defective condition of the property was affirmatively caused or created by an independent contractor or some other non-owning party, in this case the County, Stevens, or City Fence (see generally Backiel v Citibank, N.A., 299 AD2d 504, 505-507 [2d Dept 2002]). As a major landowner, the City simply has to be aware of those cases and their import.

In sum, notwithstanding its Intermunicipal Agreement with the County, and notwithstanding its lack of any role in the design or erection of the dog park, the City, by virtue of its status as the holder of the fee title to LaSalle Park, continued to owe a duty to maintain the park, including its dog park, in a condition reasonably safe for park users such as plaintiff.

THE CITY HAD NO DUTY TO WARN OF AN OPEN AND OBVIOUS CONDITION OF THE PREMISES:

The City correctly contends that there generally is no duty to warn someone of a danger of which he or she is already aware from common knowledge or personal experience. The Court well understands the principle and its application to allegations of premises liability (see generally Tagle v Jakob, 97 NY2d 165, 169 [2001]; Cimino v Town of Hempstead, 66 NY2d 709 [1985], affg without opn 110 AD2d 805, 805-806 [2d Dept 1985]; Cramer v County of Erie, 23 AD3d 1145, 1146 [4th Dept 2005]) although the Court must note that the products liability decision and legal principles cited by the City in its memorandum of law have absolutely nothing to do with this case (see Liriano v Hobart Corp., 92 NY2d 232, 241 [1998]). The sticking point here, however, is that the Court cannot see where plaintiff has actually made any allegation against the City with regard to its failure to warn of the alleged defect. Nonetheless, on the chance that the Court is missing something in its reading of the amended complaint and bill of particulars, the Court will now make clear that plaintiff may not hold the City liable for its [*8]failure to warn her of any open and oblivious condition or feature of the dog park, including its "step across" gate.

PLAINTIFF'S CLAIM IS NOT SUBJECT TO ANY REQUIREMENT OF WRITTEN NOTICE OF DEFECT:

Both the City and the County argue that the amended complaint must be dismissed for plaintiff's failure and indeed inability to plead and prove compliance with the municipalities' respective written notice of defect requirements.[FN8] In the case of the City, the reference is to City of Buffalo Charter § 21-2 (see also General Municipal Law § 50-g [1]). In the case of the County, the reference is to County of Erie Local Law No. 3 of the year 2004 (see also Highway Law § 139 [2]). Generally speaking, in each instance the provision in question forbids any civil action to be maintained against the municipality for reason of any street, highway, bridge, culvert, "sidewalk," or crosswalk being defective, out of repair, unsafe, dangerous, or obstructed unless prior written notice of the alleged defect had been given to a responsible municipal official. In the case of the City, the elements listed in the notice of defect requirement purport to include a "pedestrian walk or path," although it is clear that the City's written notice of defect provision is invalid to the extent that it purports to extend the reach of the provision beyond a conventional sidewalk or its functional equivalent, i.e., to an "unimproved trail' or path'" in a City-owned park (see Quackenbush v City of Buffalo, 43 AD3d 1386, 1388 [4th Dept2007], citing Walker v Town of Hempstead, 84 NY2d 360, 368 [1994]; see also Furnari v City of New York, 89 AD3d 605, 606 [1st Dept 2011]). Thus, the issue on the City's motion is whether, in alleging a defect in the dog park's fencing or gateway, plaintiff is essentially alleging a defect in a "sidewalk" or its functional equivalent (see Quackenbush, 43 AD3d at 1388; see generally Groninger v Village of Mamaroneck, 17 NY3d 125, 128-129 [2011] [endorsing "30 years" of case law holding that municipal public parking lot is "functional" and definitional equivalent of "highway" as enumerated in notice of defect requirement]). That likewise is the issue on the County's motion, since its notice of defect provision refers only to a "sidewalk" and not at all to a "path."

The materials currently before the Court do not contain a photograph of the dog park. However, the papers before the Court on the prior motion included such a photograph. As the Court recollects, that photograph depicted a temporary fence (including a section containing a gate) erected between two ostensibly permanent fences in a corner of the park. As depicted by that photo, the ground comprising the dog park, and in particular the ground beneath the fence and gate, was grassy and unimproved by any poured concrete, rolled asphalt, or any other surface or feature that any reasonable litigant, lawyer, or [*9]judge would label a "sidewalk." It is evident from the argument of the City especially that the municipalities mis-describe the situation as one involving plaintiff's having injured herself on a "sidewalk" based solely on the existence and location of the gate in the temporary fencing, which the City contends (or rather admits) "defined the very dimension" of the supposed sidewalk. Since users of the dog park had to enter and exit it by walking though the gate, and since individuals walk on sidewalks, then the gateway necessarily must be a sidewalk or its functional equivalent, or so the argument goes. Of course, a "sidewalk" is not defined simply as any place where people can or even customarily do walk. In other words, it is not the case that any gateway or passageway is a sidewalk. In common parlance, a sidewalk is a paved or improved surface feature [FN9] running along the travel lanes of a highway, across a public plaza, or to or from a public or private building or structure. An actual sidewalk has dimension, meaning definite length and width and depth, whereas the passageway or entranceway that defendants mis-describe as a sidewalk had no beginning or end and otherwise clearly lacked any definable dimension or bounds (apart from the width of the gate itself). Moreover, for defendants to argue that the establishment of the gateway itself "defined" (i.e, created) the sidewalk is for them to acknowledge that no sidewalk existed at that location before the erection of the temporary fence, and that no sidewalk now remains there following the removal of the temporary fence, even though nothing but the temporary fence (and certainly no pavement) was ever installed or removed at that location. Thus, the Court must conclude that plaintiff's claim has nothing to do with any alleged defect in any alleged municipal sidewalk or its functional equivalent and thus is not subject to the municipalities' respective requirements of written notice of defect.

Accordingly, the motion of defendants City of Buffalo and Buffalo Water Authority for summary judgment dismissing the amended complaint and any cross claims against it is DENIED.

The second or renewed motion of defendant County of Erie for summary judgment dismissing the amended complaint and any cross claims against it is likewise DENIED.

SO ORDERED:

HON. PATRICK H. NeMOYER, J.S.C.

August 30, 2012 Footnotes

Footnote 1:The temporary dog park referred to herein is to be distinguished, however, from a permanent dog park later established by some of the same actors in a different location in LaSalle Park.

Footnote 2:Sued as Erie County and Erie County Parks Department.

Footnote 3:The City further argues in this connection that it "could not have had" actual or constructive notice of the condition of the dog park, its fencing, and its gate. The Court will but note here that there is no evidence in the record before it that would enable the Court to determine as a matter of law that the City lacked actual or at least constructive notice of a condition that evidently had prevailed at the dog park for upwards of one year before plaintiff's accident.

Footnote 4:The City's reliance on the provisions of General Municipal Law § 119-o is misplaced. That section, while authorizing municipalities to enter into agreements, such as the instant Intermunicipal Agreement, for the performance of certain municipal functions, including the "custody, operation, [and] maintenance" of realty (§ 119 [2] [e]), on a cooperative or contractual or "joint service" basis, says nothing about the complete delegation or wholesale transfer of a municipality's proprietary liabilities. The section at most authorizes the contracting municipalities to allocate their liability as between themselves — more precisely "the manner of responding to any liabilities that might be incurred" by either or both of them "in the operation of the joint service" (§ 119 [2] [l]), as the municipalities did here in including a mutual defense and indemnification provision in their agreement (see infra). Certainly nothing in that statute automatically immunizes the City from liability for the maintenance of its parklands upon its entry into such an agreement, certainly not irrespective of the agreement's lack of any provision so immunizing the City from such liability.

Footnote 5:Making the inverse of the point that it made in the prior decision, the Court here notes that the mere fact that, as between the County and the City, the City had no contractual obligation to repair a particular non-capital asset such as the temporary fence and gate (see Ellers v Horwitz Family Ltd. Partnership, 36 AD3d 849, 851 [2d Dept 2007]; Morgan v Chong Kawn Jun, 30 AD3d 386, 388 [2d Dept 2006]) simply does not mean that the City did not own, occupy or otherwise control the park premises at the time of the accident and thus owed no duty of due care to plaintiff as a member of the public to maintain the entire park premises, including the dog park and its fencing and gate, in a reasonably safe condition.

Footnote 6:The Court again must emphasize that the County did not lease the parks or otherwise succeed to any other property interest in the parks from the City, meaning that there really was and is no property interest to be divested from the County and/or to revert to the City at the end of the 15-year term or upon the earlier termination of the Intermunicipal Agreement.

Footnote 7:Nonetheless, the record contains some materials tending to indicate that, months before his dealings with City Fence, Stevens had submitted a proposal to the City for the establishment of the temporary dog park, and further suggesting that the City had offered some input into Stevens' proposal to erect the fencing and gating.

Footnote 8:The Court does not consider the County's current contention to violate the so-called "successive motion" rule (see Farm Family Cas. Ins. Co. v Brady Farms, Inc., 87 AD3d 1324, 1325-1326 [4th Dept 2011]; Farrell v Okeic, 303 AD2d 957 [4th Dept 2003]), and also will not bother to analyze whether the instant motion of the County strictly constitutes a proper request for renewal or reargument of its prior motion (see CPLR 2221). The overriding factor here is that compliance with or satisfaction of a written notice of defect requirement, if applicable, would be an essential condition precedent and affirmative element of plaintiff's cause of action against the County (see Katz v City of New York, 87 NY2d 241, 243 [1995]; Acevedo v City of New York, 128 AD2d 488, 489 [2d Dept 1987]; Cipriano v City of New York, 96 AD2d 817, 818 [2d Dept 1983]; Drzewiecki v City of Buffalo, 51 AD2d 870, 871 [4th Dept 1976]; but see Shepardson v Town of Schodack, 83 NY2d 894, 895-896 [1994]). That in turn signifies that any noncompliance would result in plaintiff's failure to state a cause of action, an objection or defense that generally is not waived by a defendant's failure to assert it in an initial motion but that rather may be raised by appropriate motion at any stage of the action (see generally CPLR 3211 [a] [7], [c]; McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]).

Footnote 9:The City repeatedly argues that the natural state of the grassy area in question was sufficiently "improved" within the meaning of the Quackenbush decision, i.e., with the temporary fence and gate, but repeatedly fails to recognize that an improvement consisting of a fence is not an improvement consisting of or creating a sidewalk.