Windsor Court Associates, LP v. Village of New Paltz

Appellate Division of the Supreme Court of New York

Windsor Court Associates, LP v. Village of New Paltz

27 A.D.3d 814, 809 N.Y.S.2d 477

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 2, 2006

StatusPublished

Cited by5 cases

This text of 27 A.D.3d 814 (Windsor Court Associates, LP v. Village of New Paltz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Windsor Court Associates, LP v. Village of New Paltz, 27 A.D.3d 814, 809 N.Y.S.2d 477 (N.Y. Ct. App. 2006).

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Opinion

Crew III, J.P.

Appeal from an order of the Supreme Court (McCarthy, J.), entered June 13, 2005 in Ulster County, which, inter alia, granted defendant’s cross motion for summary judgment dismissing the complaint.

On two occasions in August and September 2003, a storm sewer owned and maintained by defendant overflowed and flooded the ground-level apartments in a number of buildings owned by plaintiff. As a consequence, plaintiff served a notice of claim and thereafter commenced the instant action alleging negligent construction, design, maintenance and repair of the sewer system by defendant. Following joinder of issue, plaintiff moved to dismiss certain affirmative defenses raised by defendant, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the alleged defect. Supreme Court granted defendant’s cross motion and denied plaintiffs motion as academic, prompting this appeal.

It is axiomatic that prior written notice laws are in derogation of the common law and must be strictly construed (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). Such statutes refer to defective, unsafe and dangerous conditions existing in or on a municipality’s streets and sidewalks (see Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 365-366 [1966]) and do not apply to subsurface structures such as water mains and sewer lines (see McKinnis v City of Schenectady, 234 AD2d 760, 761 [1996]; Barsh v Town of Union, 126 AD2d 311, 313 [1987]). Accordingly, prior written notice was not required here, and plaintiff’s complaint was improperly dismissed on that basis.

Spain, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, cross motion denied and matter remitted to the Supreme Court for consideration of plaintiffs motion.

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Crew III, J.P.

Appeal from an order of the Supreme Court (McCarthy, J.), entered June 13, 2005 in Ulster County, which, inter alia, granted defendant’s cross motion for summary judgment dismissing the complaint.

On two occasions in August and September 2003, a storm sewer owned and maintained by defendant overflowed and flooded the ground-level apartments in a number of buildings owned by plaintiff. As a consequence, plaintiff served a notice of claim and thereafter commenced the instant action alleging negligent construction, design, maintenance and repair of the sewer system by defendant. Following joinder of issue, plaintiff moved to dismiss certain affirmative defenses raised by defendant, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the alleged defect. Supreme Court granted defendant’s cross motion and denied plaintiffs motion as academic, prompting this appeal.

It is axiomatic that prior written notice laws are in derogation of the common law and must be strictly construed (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). Such statutes refer to defective, unsafe and dangerous conditions existing in or on a municipality’s streets and sidewalks (see Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 365-366 [1966]) and do not apply to subsurface structures such as water mains and sewer lines (see McKinnis v City of Schenectady, 234 AD2d 760, 761 [1996]; Barsh v Town of Union, 126 AD2d 311, 313 [1987]). Accordingly, prior written notice was not required here, and plaintiff’s complaint was improperly dismissed on that basis.

Spain, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, cross motion denied and matter remitted to the Supreme Court for consideration of plaintiffs motion.

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Bluebook (online)

27 A.D.3d 814, 809 N.Y.S.2d 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/windsor-court-associates-lp-v-village-of-new-paltz-nyappdiv-2006.

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