Ocasio v. City of Middletown

In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Patsalos, J.), dated May 26, 1987, which granted the motion of the defendant P. J. Reilly-Morse Funeral Home, Inc., for summary judgment dismissing the complaint as against it and the cross motion of the City of Middletown for summary judgment dismissing the complaint as against it, and (2) from a judgment of the same court, dated March 26, 1987, which dismissed the complaint. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is modified by deleting the provision thereof dismissing the complaint as against the defendant City of Middletown, and the order is modified by deleting the provision thereof granting the cross motion of the City of Middletown for summary judgment dismissing the complaint as against it and substituting therefor a provision denying that cross motion; as so modified the judgment is affirmed; and it is further, Ordered that the plaintiffs are awarded one bill of costs payable by the defendant City of Middletown. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]). Prior written notice laws, such as the City of Middletown [432] Code § 30, serve to limit or reduce a municipality’s duty to keep its sidewalks in good repair by insulating the municipality from liability for defects in streets and sidewalks which are the result of nonfeasance (see, Barrett v City of Buffalo, 96 AD2d 709). Prior written notice laws are in derogation of the common law and, thus, are to be strictly construed (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362). When read strictly, City of Middletown Code § 30 refers to physical conditions in the surface of a sidewalk, such as holes and breaks of a kind which do not immediately come to the attention of the municipal officers unless they are given actual notice thereof (see, Doremus v Incorporated Vil of Lynbrook, supra, at 365), as opposed to a feature constructed in the street or sidewalk for a special use, such as manhole covers which furnish access to underground storm sewer drains. Based on a strict construction of the city’s prior written notice law, the dangerous condition created by a missing manhole cover in the sidewalk does not constitute a sidewalk defect within the meaning of City of Middletown Code § 30 (see, Schare v Incorporated Vil. of E. Rockaway, 95 AD2d 802; Appelbaum v City of Long Beach, 8 AD2d 818; Di Lorenzo v Village of Endicott, 70 Misc 2d 159; Atkinson v Village of Ossining, 32 Misc 2d 856; cf., Drake v City of Buffalo, 95 Misc 2d 29). Furthermore, where there is evidence that a manhole constitutes a "special use” of the sidewalk by the municipality, as here, the prior written notice requirements are not applicable (see, Clark v City of Rochester, 25 AD2d 713; Smith v City of Corning, 14 AD2d 27; Filsno v City of Rochester, 10 AD2d 663; Atkinson v Village of Ossining, supra; cf., Schare v Incorporated Vil. of E. Rockaway, supra). Consequently, noncompliance with the city’s prior written notice law is not a ground for granting the city’s cross motion for summary judgment dismissing the complaint as against it. Thompson, Rubin and Eiber, JJ., concur. .