San Marco v. Mount Kisco, 16 NY3d 111 (2010)
It is well established that municipal defendants are not liable for street or sidewalk defects unless plaintiff proves that written notice was given to the statutory designee of a municipal defendant.
Where written notice is given to the wrong department in a municipality, it is insufficient to satisfy the requirement. See Gorman v. Town of Huntington, 12 NY3d 275 (2009).
A telephone complaint that is maintained on a computer database is not the equivalent of written notice satisfying town law or municipal code. See Politis v. Town of Islip, 82 AD3d 11191 (2nd Dept. 2011).
In San Marco v. Mount Kisco, 16 NY3d 111 (2010), plaintiff fell on ice in a Town parking lot on a Saturday morning. The day before, the Village plowed and salted the lot. After plowing the lot, the temperature rose for several hours and then dropped. Since plaintiff did not have proof that written notice was provided to the Village under Village Law §6-628 or Village Code, she argued that the Village employees “created” the defect by negligently piling the snow in the lot.
The Appellate Division, Second Department, rejected plaintiff’s claim, but granted plaintiff leave to appeal to the Court of Appeals.
The Court of Appeals examined whether there was sufficient evidence to establish a triable question of fact as to whether the acts of plowing the snow into a pile constituted “creation” of ice after the snow melted.
The court held that piling snow into a pile could foreseeably lead to ice after melting and refreezing. Therefore, a jury needed to decide if the Village negligently plowed the lot and created the ice that formed the following day.
In San Marco, the court distinguished recent decisions where the court decided that to prove affirmative creation of a hazardous condition, the creation of a defect had to take place immediately. Negligent repair work that led to a pothole months later did not constitute “creation of a defect” because it was not immediate. See Yarborough v. City of New York, 10 NY3d 726 (2008). See also Oboler v. City of New York, 8 NY3d 888 (2007).
In San Marco, the accident occurred 27 hours after the Village plowed the lot creating snow piles that melted and refroze overnight. There was a vigorous three-Judge dissent that felt the case should have been dismissed because the act of plowing the snow did not immediately create ice. Ice was formed only after melting and refreezing due to temperature changes.
San Marco could be a signal that the Court of Appeals is ready to relax the strict interpretation given to written notice statutes in favor of municipal defendants.
The “creation of a defect” exception is commonly argued by injured plaintiffs, but the courts have rejected this claim in many cases, holding that the argument was speculative.
Whether San Marco leads to other decisions requiring jury trials of plaintiff’s claims a municipality created a defect remains to be determined.