Opinion
February 24, 1994
Appeal from the Supreme Court, Schenectady County (Doran, J.).
Plaintiffs commenced this action to recover for injuries that plaintiff Lorraine Poirier (hereinafter plaintiff) sustained when she tripped over a sign post anchor protruding from a sidewalk along State Street in the City of Schenectady, Schenectady County. Defendant's motions to dismiss pursuant to its Charter, for failure to provide written notice at least 24 hours previous to such injuries, were denied. Following a trial, the jury awarded plaintiffs damages of $90,644.50 and apportioned liability between the parties. Supreme Court entered judgment. Defendant appeals.
We reverse. Initially, contrary to Supreme Court's ruling, defendant argues that the sign post anchor over which plaintiff tripped is a defect or obstruction encompassed by the prior written notice requirement in defendant's Charter, which requires notice "for damages or injuries to person or property sustained in consequence of * * * [a] sidewalk or crosswalk being * * * out of repair, defective, dangerous, unsafe or obstructed". We agree. Although notice provisions such as the one at issue here are in derogation of the common law and must be strictly construed (see, Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 365), the weight of authority requires that the protrusion of a five-inch sign anchor be considered a defect or obstruction within the meaning of defendant's Charter provision (see, Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917; Bisulco v. City of New York, 186 A.D.2d 84 [1st Dept]; Rehfuss v City of Albany, 118 A.D.2d 987; cf., Montante v. City of Rochester, 187 A.D.2d 924 [4th Dept]; Turco v. City of Peekskill, 133 A.D.2d 369 [2d Dept]; Schare v. Incorporated Vil. of E. Rockaway, 95 A.D.2d 802 [2d Dept]; but see, Waters v. Town of Hempstead, 166 A.D.2d 584 [2d Dept]).
Nor does the instant matter come within an established exception to the prior written notice provision. First, we reject plaintiffs' argument that the evidence presented at trial, including testimony that the sign had been attached to the sign anchor with a vandal-resistant bolt, raised an issue of fact as to whether defendant was affirmatively negligent in creating the defect by removing the sign itself (cf., Rehfuss v. City of Albany, supra). Similarly, because signs controlling vehicular traffic and parking are an integral part of providing safe streets and thus not specifically installed for the benefit of a particular party, sign posts and anchors cannot be considered a special use (see, Bisulco v. City of New York, supra, at 85; see also, Shaw v. City of Auburn, 59 N.Y.2d 780; Nickelsburg v City of New York, 263 App. Div. 625, 626; cf., Montante v. City of Rochester, supra, at 925).
Cardona, P.J., White, Casey and Weiss, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and complaint dismissed.