Several state and local laws, including Civil Practice Law and Rules §9804 and New York Town Law §65-a, provide that no civil action shall be maintained against a municipality for damages or injuries to a person unless written notice of the defect, unsafe dangerous or obstructive condition is given to the municipality. New York General Municipal Law §50-e(4) authorizes such written notice requirement only if there are defects, unsafe or dangerous conditions in the following six enumerated locations: (1) streets; (2) highways; (3) bridges; (4) culverts; (5) sidewalks; or (6) crosswalks. As will be discussed below, the New York Court of Appeals has progressively expanded the prior written notice protections to areas that serve the same “functional purpose” as the enumerated locations.

In a 1994 case, Walker v. Town of Hempstead, the plaintiff sued the town to recover for injuries sustained after a fall on a municipal paddleball court at a beach area, and the town claimed that it had not been given prior written notice of any defective condition of the paddleball court as required by Hempstead, N.Y., Code §6-2. 84 N.Y.2d 360 (1994). The court held that to the extent Hempstead, N.Y., Code §6-2 required prior notice of defect for locations other than those enumerated in N.Y. Gen. Mun. Law §50-e(4), the code section was beyond the town's supersession authority, and the absence of a prior written notice of a defect could not be a defense.

However, only two years later, in Woodson v. City of New York, 93 N.Y.2d 936, 937-38 (1996), the plaintiff sued for injuries arising out of his fall on a stairway that led from a sidewalk to a municipal park, and the court rejected the plaintiff's claim that prior written notice was not a requirement because a “stairway” was not listed as one of the six named locations in the statute. The court held that the steps between a roadway and a public sidewalk were “the equivalent of a sidewalk” because they “provide[d] a passageway for the public.” Id. at 938. Specifically, the court noted that the Administrative Code of the City of New York defined “sidewalk” to include the term “stairway” and that the stairway “functionally fulfilled the same purpose as a standard sidewalk, expect for the fact that the former is “vertical instead of horizontal.” Id. at 937-38 (emphasis added).

The New York Court of Appeals further expanded this interpretation, in Groninger v. Village of Mamaroneck, 17 N.Y.3d 125 (2d Dept. 2009). In Groninger, plaintiff fell and sustained injuries as a result of slipping on ice in the defendant village's municipal parking lot. The village moved for summary judgment dismissal, based on the lack of prior written notice as mandated by CPLR §9804 as well as the Village Law. The lower court granted the village's motion. The Second Department affirmed and found that the prior written notice requirement applied to parking lots. Plaintiff appealed, and the Court of Appeals affirmed. The Court of Appeals replied upon Woodson and held that a municipal parking lot is a “highway” under the General Municipal Law §50-e(4) because it served the same “functional purpose.” Groninger,17 N.Y.3d at 129; see Woodson, 93 N.Y.2d at 937. The Vehicle and Traffic Law §1128 broadly defines “highway” as “[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Id. The Court of Appeals held that the village owned and maintained the parking lot, and it was accessible to the general public for vehicular travel. Therefore, the village was entitled to notice and an opportunity to correct any defect before being required to respond to a negligence claim. Since plaintiff could not defeat the prior written notice requirement, her case was dismissed.

In the recent case of Hinton v. Village of Pulaski, No. 35 SSM 27, 2019 WL 722292 (Feb. 21, 2019), plaintiff commenced an action against the Village after falling while descending an exterior stairway that connects a public road to a municipal parking lot. The village did not receive prior written notice of the alleged defect, and the village moved for summary judgment. Again, the Court of Appeals relied on Woodson and held that the lower courts were correct in holding that the stairway at issue “functionally fulfills the same purpose” as a standard sidewalk. The court also relied on Groninger as further precedent for statutory interpretation. In its motion for summary judgment, the Village established that plaintiff failed to plead or prove prior written notice, and therefore the Court of Appeal held that summary judgment was properly granted.

In dictum, Court of Appeals noted that “it has been twenty years since Woodson, and “the Legislature—though fully capable of corrective action—has done nothing to signal disapproval of this interpretation.” Hinton, 2019 WL 722292 at 2 (internal quotation marks omitted).

The dissent in Hinton expresses that by holding that the stairway is a “sidewalk, “the majority has rewritten the Village Law, because “[w]hen the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.” Hinton, 2019 WL 722292 at *10 (Wilson, J., dissenting). The dissent found that the stairway in Hinton was not “integrated with, or a part of, a connected standard sidewalk” as was the stairway in Woodson. Id. at *15 (citing Woodson, 93 N.Y.2d at 937). The stairway at issue in Woodson connected a municipal park to an Avenue. According to the dissent, a review of the record and briefing in Woodson revealed that the stairway at issue was “short, shallow and perfunctory, comprising shallow concrete steps up a short, gentle incline connection two concreate sidewalks.” Hinton, 2019 WL 722292 at *15 (Wilson, J., dissenting). Furthermore, the dissent contends that “the steps [in Woodson] could have been replaced with a simple pavement ramp with the same result.” Id. The dissent distinguishes Hinton from Woodson by concluding that the stairway in Woodson, not only served the same purpose as a standard sidewalk, but it had the “same functional potential to injure someone if defectively maintained.” Id.

Conclusion

Currently, New York plaintiffs in premises cases against municipalities who cannot satisfy the written notice requirement, must be prepared to demonstrate that their accident locations survive this “functional purpose” test. Alternatively, in order for their actions to survive where they are unable to satisfy the written notice requirement, plaintiffs must establish applicability of the two exceptions to the written notice requirement: (1) that the municipality affirmatively created the condition through negligence that immediately resulted in danger; or (2) that a special use resulted in a special benefit to the municipality, separate and apart from the municipality's duty to provide for the general welfare of their residents. In absence of either of these two exceptions, the high court continues to expand the coverage of N.Y. Gen. Mun. Law §50-e(4), and give protection to municipal entities throughout the state. 

Kenneth E. Pitcoff and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley. Tasnova Amanullah, an associate, assisted in the preparation of the article.