Horan v. Town of Tonawanda

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered February 22, 2010 in a personal injury action. The order granted the motion of defendant for summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she tripped over a pothole in a road owned and maintained by defendant. Contrary to plaintiff’s contention, Supreme Court properly granted defendant’s motion for summary judgment dismissing the amended complaint. Pursuant to Town Law § 65-a (1), a town may be liable for a dangerous highway condition if it had either prior written notice or constructive notice of the dangerous condition. Town of Tonawanda Code (Town Code) § 68-2 (A) provides, however, that defendant may be liable only if it had prior written notice of the dangerous condition. In support of its motion, defendant established as a matter of law that it lacked prior

As plaintiff correctly notes, Highway Law § 139 (2), which applies to counties, contains provisions that are similar to Town Law § 65-a (1), and it is well established that a county’s local law containing a notice requirement “must be interpreted in conjunction with Highway Law § 139 (2) to permit an action against the [c]ounty based on constructive notice of a dangerous highway condition” (Tanner W. v County of Onondaga, 225 AD2d 1074 , 1074 [1996]; see Napolitano v Suffolk County Dept. of Pub. Works, 65 AD3d 676 , 677 [2009]; DeHoust v Aakjar, 290 AD2d 927 , 927-928 [2002], lv dismissed 98 NY2d 692 [2002]; see generally Carlino v City of Albany, 118 AD2d 928 , 929-930 [1986], lv denied 68 NY2d 606 [1986]). The rationale underlying those cases is that a county’s local law cannot supersede a general state law (see DeHoust, 290 AD2d at 928 ; see generally NY Const, art IX, § 3 [d] [1]; Kamhi v Town of Yorktown, 74 NY2d 423 [1989]).

Nevertheless, Municipal Home Rule Law § 10 (1) (ii) (d) (3), which is also a general state law, specifically permits a town, as opposed to a county (see § 10 [1] [ii] [b]), to amend or supersede through its local laws any provision of the Town Law relating to the property of the town “notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law.” Because the Legislature has not expressly prohibited defendant from enacting a more restrictive notice requirement than that contained in Town Law § 65-a (1), defendant was entitled to do so (see Bacon v Arden, 244 AD2d 940 , 940-941 [1997]; Canzano v Town of Gates, 85 AD2d 878 , 879 [1981]; see generally Walker v Town of Hempstead, 190 AD2d 364 , 369-370 [1993], affd 84 NY2d 360 [1994]). The notice provisions of Town Code § 68-2 (A) are thus valid and, contrary to plaintiffs contention, defendant was not required to establish that it lacked constructive notice of the pothole in order to establish its entitlement to summary judgment dismissing the amended complaint.

Contrary to plaintiffs further contention, defendant was not required to establish that it did not create the dangerous condition through an affirmative act of negligence in order to establish its entitlement to summary judgment. There are two recognized exceptions to the prior written notice rules, i.e., “where the locality created the defect or hazard through an affirmative act of negligence . . . and where a ‘special use’ confers