affirming denial of City's motion for summary judgment because plaintiff was not required to provide prior written notice "since the City created the crack in the pavement"Summary of this case from Lopez v. Bell Sports, Inc.
Argued November 18, 1988
Decided December 22, 1988
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Charles B. Swartwood, J.
John L. Perticone for appellant.
Robert C. Mulvey and Richard I. Mulvey for respondents.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.
The Appellate Division correctly denied the City's motion for summary judgment and granted plaintiff's cross motion to amend the complaint to add the uncontested factual allegation that the City removed a tree stump in 1982, thereby creating the broken and defective condition of the sidewalk that resulted in plaintiff's injuries. It is well established that a municipality is under a continuing duty to maintain its public roadways in a reasonably safe condition (see, D'Ambrosio v City of New York, 55 N.Y.2d 454, 462; Blake v City of Albany, 48 N.Y.2d 875, 876), and that such duty is independent of its duty not to create a defective condition (see, Sniper v City of Syracuse, 139 A.D.2d 93, 96). Thus, the Appellate Division correctly determined that plaintiff's personal injury action is properly based upon the City's negligent failure to maintain the sidewalk in repair. The action also was timely commenced because brought within 1 year and 90 days after the breach of that ongoing duty — the "happening of the event upon which the claim is based" (General Municipal Law § 50-i [c]) — which breach resulted in plaintiff's accident. Moreover, since the City created the crack in the pavement, plaintiff was not required to provide it with prior written notice of the unsafe condition (Muszynski v City of Buffalo, 29 N.Y.2d 810, affg on opn below 33 A.D.2d 648; Hogan v Grand Union Co., 126 A.D.2d 875, 876) and thus the City's motion for summary judgment based upon plaintiff's failure to comply with the prior notice provision in the Ithaca City Charter was properly denied.
The Appellate Division erred, however, insofar as it construed the amended complaint as stating a separate cause of action based solely on the City's negligence in removing the tree stump rather than on its negligence in failing to properly maintain the sidewalk. If that were so, the negligent removal of the stump rather than the negligent failure to maintain the sidewalk that resulted in the accident would constitute "the happening of the event" for purposes of General Municipal Law § 50-i (1) (c). As removal of the tree stump occurred over two years prior to the accident, the statutory period for commencing an action against the City for that discrete act of negligence has long since expired (see, Klein v City of Yonkers, 53 N.Y.2d 1011; Sniper v City of Syracuse, 139 A.D.2d, at 95, supra; Nebbia v County of Monroe, 92 A.D.2d 724, lv denied 59 N.Y.2d 603). Accordingly, we do not construe the amended complaint as alleging a distinct cause of action grounded solely in the City's negligent stump removal, but rather view the amendment as merely adding the factual allegation that the City created the defective condition, thus obviating the need to comply with the prior notice provision in the Ithaca City Charter.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order affirmed, etc.