The Appellate Division, Fourth Department, recently handed down two decisions in favor of municipalities based on their "prior written notice" statutes. In Christy v. City of Niagara Falls, (4th Dept., 2013), the plaintiff was injured when he was thrown from his motorcycle upon hitting a pothole on a road maintained by the City of Niagara Falls. Judge Panepinto denied the defendant's motion for summary judgment. The motion was predicated upon the city's prior written notice statute. Plaintiff alleged that the city had actual notice of the pothole because the city had taken steps to repair it prior to the subject accident. Plaintiff's allegation was that these repairs had been undertaken in a negligent fashion and that the city could thus be held responsible. The Fourth Department disagreed holding that, even if the plaintiff's allegations are true, this would not provide an exception to the prior written notice requirement unless the defective condition "immediately resulted" from the repair.

Similarly, in Duffel v. City of Syracuse, (4th Dept., 2013), the plaintiff sought damages for personal injuries sustained when she tripped and fell on the edge of a grate that was part of a city sidewalk. The grate had sunk approximately one half inch below the surrounding sidewalk, however the defendant city had no prior written notice of the condition. The Fourth Department held that the defendant met its initial burden simply by demonstrating that it had no prior written notice of the alleged defect. The Court emphasized that the plaintiff failed to raise an issue of fact because she offered no evidence that "the depression was immediately present after installation of the tree grate".

Tyson v. Nazarian, (4th Dept., 2013), involved a familiar fact pattern. There, a motor vehicle accident occurred at an intersection. The defendant was attempting to make a left turn across two lanes of traffic. The plaintiff was traveling in the curbside lane. There was at least one other vehicle in the left lane obstructing the plaintiff's and defendant's view of one another. The defendant turned left in front of the plaintiff's vehicle and an accident ensued. Under these facts, the Fourth Department held that the actions of the defendant in making his left-hand turn were the sole proximate cause of the accident.

Sauter v. Calabretta, (4th Dept., 2013), involved a motor vehicle versus pedestrian accident. The plaintiff and another pedestrian had been walking on the shoulder of the road when the plaintiff was struck from behind by the defendant's vehicle. There was a dispute as to the whether the impact occurred on the shoulder of the road or in the driving lane. The jury returned a verdict in favor of the defendant on the issue of negligence, but the trial court set that verdict aside. On appeal, the Appellate Division, Fourth Department, reinstated the jury's verdict rejecting the trial court's reasoning that, regardless of the plaintiff's location, the defendant was "negligent in failing to see what was there to be seen".

In Connelly v. City of Syracuse, (4th Dept., 2013), the plaintiff was struck while riding his bicycle by a police vehicle. The police vehicle was in pursuit of two suspects riding motorcycles. As such, the Fourth Department agreed that the officer was "operating an authorized emergency vehicle while involved in an emergency operation" and thus entitled to be held to a reckless (as opposed to negligence) standard pursuant to Vehicle and Traffic Law §1104 (e). The Court did not dismiss the case however, finding an issue of fact as to whether the defendant officer acted with reckless disregard for the safety of others by entering the intersection, against the stop sign, and without activating his emergency lights or sirens.

In Applebee v. County of Cayuga, (4th Dept., 2013), an appeal was taken following a jury verdict. The plaintiff had been injured when his motorcycle hit a bump in the defendant County's road. The jury was given an interrogatory asking whether the "plaintiff's conduct constituted a superseding cause of his own injuries". The jury answered in the affirmative but, nevertheless, attributed 45% fault to the County. This result is legally inconsistent. The trial court let the verdict stand and neither party objected (most likely each thinking they had won). The issue came to a head when both parties attempted to file a judgment in their favor. Appeals were taken from an order resolving cross motions to vacate the other's judgment. The Appellate Division, Fourth Department, explained that the only options available to the trial court under these circumstances were to either instruct the jury to deliberate further or order a new trial. As it was too late to have the jury deliberate further, a new trial was ordered.

Prepared by Scott R. Orndoff