Municipal Law Update
July 13, 2017
County, City, Town Not Liable for Motor Vehicle Accident
In Full v. Monroe County Sheriff's Dept., 2017 NY Slip Op 05557 (4th Dep't July 7, 2017), the plaintiff sought damages for injuries sustained when he was struck by a motor vehicle. On the day of the accident, Monroe County had sponsored an air show at Ontario Beach Park, which is owned by the City of Rochester and operated by the County. To accommodate the vehicular traffic in the vicinity of the air show, an inter-agency task force involved in the planning of the air show temporarily designated Beach Avenue, normally a two-way street, as a one-way street in which the traffic could travel only westbound. Side streets were barricaded, and parking was banned along the length of the Beach Avenue corridor. Just prior to the accident, Full drove along the corridor, pulled into a private driveway, exited his vehicle, and crossed the street to seek parking advice from pedestrians. As Full re-crossed the street, he was struck by an oncoming vehicle, suffering severe brain injuries.
The County, City, and the Town of Greece moved separately for summary judgment dismissing the complaint against them, which was granted by the lower court. On appeal, the plaintiff did not challenge the lower court's dismissal of the complaint against the Monroe County Sheriff's Department and the Town of Greece. The Fourth Department further noted that the Sheriff's Department was an improper party, stating, ""[A] Sheriff's Department does not have a legal identity separate from the County . . ., and thus an action against the Sheriff's Department is, in effect, an action against the County itself'."
The Fourth Department concluded that the creation of the Beach Avenue corridor was a governmental function, and therefore the allegedly negligent conversion of Beach Avenue into a one-way street was not actionable in the absence of a special duty to the plaintiff. Traffic regulation is a classic example of a governmental function.
The Court additionally found that the lower court erred in determining that the plaintiff's cause of action for negligence under state law against defendants was preempted by federal law. The alleged negligence of the defendants in sponsoring the air show, including their decision to locate the show at Ontario Beach Park and their alleged failure to keep greater distance between the purportedly distracting planes and nearby pedestrians and drivers, arose from proprietary functions and thus were "subject to the same principles of tort law as a private [party].'" Nevertheless, the defendants were able to establish as a matter of law that any negligent operation of the air show was not a proximate cause of Full's injuries, because neither he nor the driver was proven to have been distracted by the air show.
No Summary Judgment for County in Defective Guide Rail Case
In Morris v. Ontario County, 2017 NY Slip Op 05533, (4th Dep't July 7, 2017), the plaintiff brought suit against the County seeking damages stemming from a motor vehicle accident. The plaintiff's decedent was operating her vehicle on County Route 41 when the vehicle traveled off the road and hit the guide rail on Fish Creek Bridge in the Town of Victor. The guide rail system was installed during a 2005 renovation project of County Route 41.
The lower court granted the defendants' motion for summary judgment, but the Fourth Department reversed that decision. The Court concluded that the County failed to meet its initial burden of establishing its entitlement to summary judgment based on qualified immunity. In particular, the County failed to establish that the decision to change the end assembly of the guide rail from a Type I to a Type II end assembly was "the product of a deliberative decision-making process, of the type afforded immunity from judicial interference."
The Fourth Department also rejected the County's argument that it could not be held liable because it did not receive written notice of the dangerous condition or defect. The plaintiffs alleged that the County affirmatively created the alleged dangerous condition or defect by, among other things, negligently changing the design plans and installing the Type II end assembly, as well as omitting an additional guide rail. The Court noted that the prior notice requirement does not apply where a tortfeasor's negligent design or construction creates a dangerous condition or defect.
Finally, the Court concluded that there were questions of fact as to whether the County's alleged negligence with respect to the change in the end assembly was a proximate cause of the accident and, thus, neither the County nor plaintiffs were entitled to summary judgment on the issue of proximate cause.
No Redress for Town that Did Not Properly Commence Action
In Matter of Town of Cicero v Lakeshore Estates, LLC, 2017 NY Slip Op 05524 (4th Dep't July 7, 2017), without filing or serving either a summons, a complaint, a petition, or a notice of petition, the Town of Cicero obtained and served upon Lakeshore Estates an order to show cause demanding a permanent injunction requiring that certain structures constructed by Lakeshore Estates on their property in alleged violation of the Town's zoning and building codes be removed at their own expense. The Town appealed from an order that purportedly denied the "Petition."
The Fourth Department succinctly held that because the Town never properly initiated a suit against Lakeshore Estates, the Court lacked jurisdiction to entertain the Town's request. While courts are directed under CPLR ยง103(c) to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, the Court found that "more than improper form is involved here." The Court held that converting the order to show cause and supporting papers into a summons and complaint in these circumstances would effectively permit the Town to seek an injunction by motion, a result at odds with the well-established principle that the pendency of an action is an indispensable prerequisite to the granting of an injunction. The "Petition" was, therefore, dismissed.
If you have questions about these cases or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

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