Opinion
January 27, 1984
Appeal from the Supreme Court, Niagara County, Ostrowski, J.
Present — Hancock, Jr., J.P., Callahan, Boomer, Green and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: We affirm Special Term's dismissal of plaintiff's complaint against the town for failure to allege compliance with Local Law No. 1 of 1977 of the Town of Pendleton which, we hold, requires, as a condition precedent to bringing suit, the service of written notice on the town of the defect or danger resulting from the existence of snow and ice upon county highways within the town (see Drzewiecki v City of Buffalo, 51 A.D.2d 870; Powell v Gates-Chili Cent. School Dist., 50 A.D.2d 1079). Special Term erred, however, in dismissing the cross claim of the county against the town, which contained two causes of action: one for Dole v Dow Chem. Co. ( 30 N.Y.2d 143) apportionment of fault and the other for the full shifting of the loss based on indemnity. Regardless of whether the town can be said to have breached a duty owed to plaintiffs, the town's breach of its contractual duty to the county to remove ice and snow from county highways gives rise to a claim for apportionment (see Garrett v Holiday Inns, 58 N.Y.2d 253, 259; Nolechek v Gesuale, 46 N.Y.2d 332; CPLR 1401). The second cross claim seeking recovery under the indemnity agreement should also be sustained. The dictum to the contrary in Powell v Gates-Chili Cent. School Dist. ( supra), relied upon by Special Term, is not consistent with accepted principles which have been clearly articulated in recent cases that Dole "left undisturbed the established rules of indemnification" and that "'[t]he right to indemnity, as distinguished from contribution * * * springs from a contract, express or implied, and full, not partial, reimbursement is sought' ( McFall v Compagnie Maritime Belge [ Lloyd Royal], S.A., 304 N.Y. 314, 327-328 * * *)" ( McDermott v City of New York, 50 N.Y.2d 211, 216; see Riviello v Waldron, 47 N.Y.2d 297, 306). Special Term, having found that the town would not be liable to plaintiffs because of Local Law No. 1 of 1977, held that the town could not be negligent and reasoned that it could not, therefore, be liable under the indemnity clause. This was error. The town could be negligent even though insulated from liability to plaintiffs by virtue of the local law. Moreover, it could be negligent as to the county in failing properly to perform its contractual duty of removing ice and snow.