Summary Judgment Granted As Village Did Not Have Prior Written Notice of Defect
In Malek v Village of Depew, 2017 NY Slip Op 08998 (4th Dept Dec. 22, 2017), the plaintiff brought suit to recover damages for injuries that he sustained when his foot fell through the pavement adjacent to a storm drain that was located in defendant Village of Depew. The trial court denied the Village’s motion for summary judgment dismissing the complaint.
On appeal, the Fourth Department held that there was no dispute that the Village established that it lacked prior written notice, thus shifting the burden to the plaintiff to demonstrate that an exception to the general rule is applicable. Such an exception exists where the municipality affirmatively created the defect through an act of negligence. That exception, however, applies only to work by the municipality that immediately results in the existence of a dangerous condition. Here, the plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work. The Village was therefore entitled to summary judgment dismissing the complaint.
City Denied Governmental Immunity in Lead Paint Case
In Washington v City of Rochester, 2017 NY Slip Op 09053 (4th Dept Dec. 22, 2017), the plaintiff brought suit seeking damages for injuries she sustained as a result of exposure to lead paint while residing at a residence owned by the City of Rochester. The City moved for summary judgment on the basis of governmental immunity. The trial court denied the motion.
When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises. Where a municipality acts in a proprietary capacity, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties.
Here, the City failed to meet its initial burden of establishing as a matter of law that its actions were undertaken in a governmental rather than a proprietary capacity. Ownership and care relating to buildings with tenants has traditionally been carried on through private enterprises, specifically by landlords, and thus constitutes a proprietary function when performed by a municipality. As a result, the trial court’s denial of the City’s summary judgment motion was affirmed.
No Abuse of Discretion in Grant of Leave to File Late Notice of Claim
In Matter of Gumkowski v Town of Tonawanda, 2017 NY Slip Op 09079 (4th Dept Dec. 22, 2017), the claimant, Kathleen Gumkowski, applied for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5). The trial court granted the application, and the Fourth Department affirmed.
In reviewing whether to grant an application for leave to file a late notice of claim, courts consider whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality. Absent a clear abuse of discretion, the lower court’s determination will not be overturned on appeal.
Here, the claimant showed a reasonable excuse for the delay and the delay did not cause the Town substantial prejudice.
Prepared by Eric W. Marriott, Esq.