Sueing a municipality: Gorman and Prior Written Notice

The NY Court of Appeals recently limited a plaintiff’s ability to recover from a municipality for a sidewalk accident. Generally, before you can sue a municipality for a defect, that municipality must have prior notice in writing that the defect exists.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.

In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.

In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.

The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?

We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.

The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.