Plaintiff Cannot Overcome Prior Written Notice Requirement in Trip-and Fall Case
In Hernandez v City of Syracuse, 2018 NY Slip Op 06351 (4th Dep’t Sep. 28, 2018), the plaintiff broke her ankle when she tripped on a deformed sidewalk in the City of Syracuse. The plaintiff commenced a negligence action against the City, and the City moved for summary judgment on the ground that it did not receive prior written notice of the alleged defect. The plaintiff opposed the motion, arguing that there had been an oral complaint to the City over the phone that a City worker had written down. The trial court denied the motion.
On appeal, the Fourth Department held that, consistent with the Court of Appeals’ decision in Gorman v Town of Huntington, 12 NY3d 275 (2009), a verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy a prior written notice requirement. As the plaintiff could not prove the exception to the written notice requirement, that the City affirmatively created the defect through an act of negligence that immediately resulted in the existence of a dangerous condition, the Fourth Department reversed the lower court’s holding and dismissed the complaint.
No Reckless Disregard Found for Rochester Police Officer
In Martinez v City of Rochester, 2018 NY Slip Op 06398 (4th Dep’t Sep. 28, 2018), Rochester police officer Jeremy Nash was responding to a police call with his emergency lights and sirens activated when he slowed his patrol vehicle and then entered the intersection against a red light. The plaintiff’s vehicle entered the intersection with a green light and struck the side of Nash’s patrol vehicle. The plaintiff commenced an action for negligence, and the City of Rochester moved for summary judgment, which the trial court granted.
On appeal, the Fourth Department found that pursuant to Vehicle and Traffic Law § 1104, the driver of an authorized emergency vehicle, including a “police vehicle,” who is responding to a police call, may proceed past a steady red signal, but only after slowing down as may be necessary for safe operation. An officer engaged in such privileged conduct cannot be held liable unless his or her conduct demonstrates a reckless disregard for the safety of others, or, in other words, rises to the level of recklessness. In order to establish recklessness, there must be evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.
In light of the facts of the case, the Fourth Department found that the officer’s conduct did not rise to the level of reckless disregard for the safety of others, and affirmed the lower court’s order granting summary judgment to the defendants.
Insurance Company Cannot Disclaim Coverage Following Fire Deaths
In Matter of Turner v Municipal Code Violations Bur. of City of Rochester, 2018 NY Slip Op 06350 (4th Dep’t Sep. 28, 2018), the plaintiff brought suit under Article 78 seeking a declaratory judgment that Sections 202 and 307.1 of the Property Maintenance Code of New York State are unconstitutional, after the Municipal Code Violations Bureau of the City of Rochester found that the plaintiff had violated section 307.1 of the Code.
Section 307.1 of the Code states:
“Every exterior and interior flight of stairs having more than four risers shall have a handrail on one side of the stair and every open portion of a stair, landing, balcony, porch, deck, ramp or other walking surface that is more than 30 inches (762 mm) above the floor or grade below shall have guards. Handrails shall be not less than 30 inches (762 mm) in height or more than 42 inches (1067 mm) in height measured vertically above the nosing of the tread or above the finished floor of the landing or walking surfaces. Guards shall be not less than 30 inches (762 mm) in height above the floor of the landing, balcony, porch, deck, or ramp or other walking surface.”
Section 202 of the Code defines the term “guard” as “a building component or a system of building components located at or near the open sides of elevated walking surfaces that minimizes the possibility of a fall from the walking surface to a lower level.”
On appeal, the Fourth Department held that Property Maintenance Code Sections 202 and 307.1 are not unconstitutional and that the determination of the defendant that the plaintiff had violated the Code had a rational basis and was not arbitrary or capricious.
Prepared by Eric W. Marriott, Esq.