Allstate Ins. Co. v City of Mt. Vernon

[*1] Allstate Ins. Co. v City of Mt. Vernon 2005 NY Slip Op 51637(U) [9 Misc 3d 133(A)] Decided on October 12, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: October 12, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2005-110 W C

Allstate Insurance Company A/S/O ROSEMARIE GIULIANI, Respondent,

against

City of Mt. Vernon, Appellant.

Appeal from an order of the City Court of Mount Vernon, Westchester County (William Edwards, J.), entered September 10, 2004. The order denied defendant's cross motion for summary judgment and granted plaintiff's motion to restore the action to the calendar and to compel discovery.

Order unanimously reversed without costs, defendant's cross motion for summary judgment dismissing the complaint granted and plaintiff's motion to restore the action to the calendar and to compel discovery denied as academic.

This action was brought against defendant to recover for damages to plaintiff's subrogor's motor vehicle as a result of flooding after a rainstorm caused by a backup in defendant's sewer system in the area where plaintiff had parked her vehicle. Defendant sought summary judgment dismissing the action based upon plaintiff's noncompliance with the prior written notice requirement of section 265 of the City Charter of Mount Vernon. The court below denied defendant's cross motion, stating that the prior written notice requirement was not applicable to the instant case inasmuch as defendant had investigated the alleged defective condition and was in the process of obtaining construction designs to remedy said condition. This appeal ensued.

Section 265 of the City Charter of Mount Vernon requires that, prior to the occurrence complained of, written notice of "any street, highway, bridge, culvert, sidewalk, crosswalk . . . being defective, out of repair, unsafe, dangerous or obstructed" be given to the Commissioner of [*2]Public Works before any action for personal injury or property damage may be maintained against the City. The only exceptions to the prior written notice requirement which have been recognized by the Court of Appeals are where the municipality created the defect or hazard through an affirmative act of negligence, or where a "special use" conferred a special benefit upon the municipality (see Amabile v City of Buffalo, 93 NY2d 471 [1999]). Thus, contrary to the conclusion of the court below, the fact that defendant had or should have had knowledge of the defective or dangerous condition because it had inspected the area in question did not obviate the need for prior written notice (see Berner v Town of Huntington, 304 AD2d 513 [2003], revg 193 Misc 2d 331 [2002]; cf. Blake v City v Albany, 63 AD2d 1075 [1978], affd 48 NY2d 875 [1979]; Ferris v County of Suffolk,174 AD2d 70 [1992]). Moreover, plaintiff's assertion that the defect in question does not fall within the parameters of the prior written notice provision is without merit (see e.g. Braun v Village of New Square, 3 AD3d 513 [2004]). Accordingly, the court below should have granted defendant's cross motion for summary judgment dismissing the complaint and denied plaintiff's motion as academic.
Decision Date: October 12, 2005