Municipal Home Rule: Horan v. Town of Tonawanda

Appellate Division, Fourth Department

Municipal Home Rule

Notice

Horan v. Town of Tonawanda
CA 10-02522
Appeal from the Supreme Court, Erie County

Background: The plaintiff brought the action seeking damages for injuries she had sustained when she tripped over a pothole in a road owned and maintained by the defendant. The lower court ordered the action dismissed as the defendant established that, as a matter of law, it lacked prior written notice of the pothole, but failed to address whether it lacked constructive notice thereof. The plaintiff appeals the order.

Ruling: The Fourth Department affirmed as Municipal Home Rule Law § 10 (1) (ii) (d) (3) permits a town to amend or supersede through local law any provision of the New York State Town Law. The town law provides that a town may be liable for a dangerous highway condition if it had actual or constructive notice of the condition. However, the Town of Tonawanda code provides that the defendant may only be liable upon written notice of the dangerous condition. As this local law amended the town law to a stricter notice standard, summary judgment was proper.

Laura C. Doolittle of the Law Offices of Eugene C. Tenney for the plaintiff-appellant; Norman ES Green of Bouvier Partnership LLP for the defendant-respondent