Summary
In Fitzpatrick v. Barone, 215 A.D.2d 351, 626 N.Y.S.2d 220, the Appellate Term — Second Department (a court of intermediate appeal), did not mention Waligora or address the need to give meaning to the statutory structure as a whole, and ignored the function of the N.Y. statute as a "notice" statute.
Summary of this case from In re DembroskyOpinion
May 1, 1995
Appeal from the Supreme Court, Nassau County (Kohn, J.).
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action, inter alia, to recover damages for personal injuries sustained as a result of an automobile accident which allegedly was caused by the plaintiff's failure to observe a stop sign due to foliage which obstructed the view of the stop sign. The Town's motion for summary judgment was based on the assertion that Oyster Bay Town Code § 160-1 (c) requires that the Town receive prior written notice as a condition precedent to the maintenance of a civil action against the Town for an allegedly defective condition of a traffic sign. Oyster Bay Town Code § 160-1 (c) is in conflict with General Municipal Law § 50-e (4) to the extent it requires prior written notice with respect to defects claimed to exist in those categories of municipal property which cannot be classified as "street[s], highway[s], bridge[s], culvert[s], sidewalk[s], or crosswalk[s]" (General Municipal Law § 50-e; Walker v Town of Hempstead, 84 N.Y.2d 360). The provision in the Town Code relied upon by the Town is therefore invalid (see, Walker v Town of Hempstead, supra; cf., Poirier v City of Schenectady, 85 N.Y.2d 310).
Furthermore, the defective condition which caused the accident in this case cannot be deemed to constitute a defect in a street or highway as those terms are used in General Municipal Law § 50-e (4). The presence of foliage in the vicinity of a stop sign cannot be considered a physical defect in a nearby street or highway (see, Doremus v Incorporated Vil. of Lynbrook, 18 N.Y.2d 362; see also, Monteleone v Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 918; DiSanto v Town of Islip, 212 A.D.2d 500; Torres v Galvin, 189 A.D.2d 870). For these reasons, summary judgment was properly denied. Mangano, P.J., Bracken, Balletta and O'Brien, JJ., concur.