The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 4-8; 12-13 Answering Papers 11; 14-16 Reply 17; 18 Decision/Order This action arises from an incident that occurred on August 6, 2020, at approximately 6:00 p.m., at the entry to the men’s restroom at Cathedral Pines County Park, Middle Island, New York. Specifically, plaintiff alleges that he was caused to trip and fall as the result of an improper and defective door saddle at the threshold of the men’s room, inside Suffolk County building P2545, wherein the men’s restroom is located. In response to the complaint, the County interposed its answer asserting seven affirmative defenses, the sixth of which alleges that this action is barred by lack of prior written notice to the County as to the defective condition. It is this sixth affirmative defense that the plaintiff now moves to strike from the County’s answer (Motion Sequence 001). The plaintiff also moves for an Order imposing costs sanctions upon the County based upon its “continued abuse of the unconstitutional, illegal, improper, over-reaching Suffolk County Charter Section C8- 2A and its illegal expansion of New York State General Municipal Law §50-e (4) through its thirty-two (32) additional enumerated locations contained within the Charter which [the County] asserts require prior written notice to maintain a lawsuit despite being provided with the applicable Court of Appeals case law” (Motion Sequence 002). The County opposes both motions. According to plaintiff’s counsel, he requested that the County withdraw its sixth affirmative defense based upon supplying the County Attorney’s Office with the case entitled Walker v. Town of Hempstead (84 NY2d 360 [1994]). The County responded in writing that it would not withdraw that defense, noting that it had “yet to find any caselaw specifically stating that our statute is improper or violative of G.M.L. 50-e.” Following the denial of plaintiff’s request, these two motions were made. CPLR §3211 (b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” “Upon a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v. Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). General Municipal Law (GML) §50-e (4) provides in relevant part that “nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice.” There are six locations listed in that statute for which prior written notice is required. The Suffolk County Charter, Section C8-2A that was enacted by resolution in 2004, includes thirty-eight (38) locations which require prior written notice to maintain an action against the County. Plaintiff maintains that the subject provision of the Suffolk County Charter (hereinafter “the provision”) violates GML §50-e (4) by “greatly expand[ing] the protections granted in the General Municipal Law,” and that the expansions enacted by the Suffolk County Legislature are “egregious.” Essentially, the plaintiff argues that the subject provision of the Suffolk County Charter is improper. Plaintiff asserts that since the trip-and-fall incident occurred inside a County building housing the restroom, that location is not enumerated within the six locations provided for by the GML, and so the affirmative defense of no prior written notice should be stricken from the County’s answer. Plaintiff principally relies upon Walker v. Town of Hempstead, supra, that involved an incident on a municipal paddleball court located at a Town beach area. The Town’s code provided that prior written notice was required in order to maintain an action against the Town for damages or injuries sustained by reason of any defective parking field, beach area, swimming or wading pool or pool equipment, playground or playground equipment. The Court of Appeals recognized that “[t]he Municipal Home Rule Law authorizes every local government to adopt laws relating to its ‘property, affairs or government’, so long as those enactments are not inconsistent with the Constitution or any general law… provided that the legislation is not inconsistent with the Constitution or any general law or prohibited by State law[;]” however, “ [b]ecause defendant [in Walker] is a town,…its enactment of a local law inconsistent with the Town Law may be permissible under Municipal Home Rule Law §10 (1) (ii) (d) (3), which confers express authority on towns to amend or supersede provisions of the Town Law in relation to matters as to which they are otherwise authorized to adopt local legislation under the Municipal Home Rule Law, ‘unless the legislature expressly shall have prohibited the adoption of such a local law’” (Id. at 365 citing MHRL §10 [1] [ii] [d] [3]). It is in this distinction as to Town Law that the plaintiff’s argument fails in this case. The Court of Appeals in Walker emphasized that the GML is made applicable to towns pursuant to Town Law §67 (1), the language of which provides that “[a]ny claim including a claim specified in section sixty-five-a of this chapter which may be made against the town or town superintendent of highways for damages for wrong or injury to person or property…shall be made and served in compliance with section fiftye of the general municipal law” (emphasis added). The fact that the Town Law controls the application of the GML vis a vis towns is what differentiates Walker from the case at bar involving the County. In Walker, “the Legislature expressly prohibited the adoption of a local law so as to preclude the Town of Hempstead’s supersession of so much of Town Law §67 as incorporates [GML] §50-e (4)” (Id. at 366). Accordingly, the Town of Hempstead could not extend the prior written notice protection to a paddleball court that clearly was not a street, highway, bridge, culvert, sidewalk, or crosswalk, or what could reasonably be considered an extension of those locations (see Hinton v. Village of Pulaski, (33 NY3d 931 [2019] [descending exterior stairway connecting public road to municipal parking lot); Woodson v. City of New York, 93 NY2d 936 [1999] [stairway leading from public sidewalk to municipal park]). Notably, none of the cases cited by the plaintiff involve a county’s ability to expand on the locations contained in the GML; rather, all of the cases cited involved towns or villages.1 MHRL §10.1 (ii)(b) confers upon county governments the authority to adopt, amend, or repeal a county charter, authority that is not given to towns without limitation (see MHRL §10.1 [ii] [d] [3]). The MHRL distinction between towns and counties insofar as the authority afforded to each is determinative here. The plaintiff has not cited any authority supporting his position that the County cannot expand upon the categories of property subject to the prior written notice requirement, nor can this Court find any authority for that proposition advanced by plaintiff. Inasmuch as the MHRL as applied to counties permits them to adopt and amend a charter and there is no analogous statutory authority restricting counties to the six areas denoted in the subject GML provision, it cannot be said that the County’s assertion of its sixth affirmative defense has no merit. Accordingly, the plaintiff’s motion to strike that defense is denied; likewise, and since the County is relying upon an apparently valid, pending statute, its assertion of the affirmative defense has a good faith basis, and the plaintiff has not established that sanctions against the County are warranted2 (see 22 NYCRR 130-1.1 [c]; Konstantinos Apostolidis, 193 AD3d 1039 [2d Dept 2021]). The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ ] NON-FINAL DISPOSITION [ X ] Dated: December 1, 2023
