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October 2, 2023

Appellate Courts Split in Interpretation of New York State's Highway Law Section 139(2)

The Appellate Division, Fourth Department’s, recent decision in Hart v. City of Buffalo1 creates a split among New York State’s intermediate appellate courts regarding a county’s liability for sidewalk defects.

In Hart, the plaintiff stepped into a hole of deteriorated concrete on a public sidewalk adjacent to a courthouse owned by defendant Erie County, which caused her to fall and allegedly sustain injuries. Under the Buffalo City Charter, the county was required to maintain the sidewalk as the owner of the abutting courthouse. The plaintiff filed a timely notice of claim and commenced a negligence action against the county, among other defendants.

The county moved for summary judgment seeking dismissal of the complaint on the grounds that it did not receive prior written notice of the alleged defective condition, as required by the county’s local law. The lower court agreed with the county and granted the motion.

On appeal, the plaintiff asserted that the lower court had erred in its application of the local law and cited to New York Highway Law § 139(2) as controlling authority. Highway Law § 139(2) provides that a county may still be liable for a defective “highway” condition, in the absence of prior written notice, if such condition “existed for so long a period of time that the same should have been discovered and remedied in the exercise of reasonable care and diligence.”

Presented with an issue of statutory interpretation, the Fourth Department determined that the term “highway” as used in the statute includes a sidewalk and thus the constructive notice provision of Highway Law § 139(2) necessarily extended to sidewalk defects. The court reasoned that the local prior written notice requirement cannot supersede statewide statutory law. Notably, the record did not contain any evidence that the county was responsible for maintenance of the street abutting the sidewalk. Instead, the court relied on the county’s duty to maintain the sidewalk as the adjoining property owner.

The court found that in order to prevail on the motion, the county was required to establish the absence of prior written notice and that it lacked constructive notice of the alleged sidewalk defect. Ultimately, the court held that the county failed to meet its burden on constructive notice, reversed the lower court’s dismissal, and reinstated the complaint against the county.

The Hart decision is significant in that it essentially negates local prior written notice laws that conflict with state statutes. Moreover, it conflicts with the Second Department’s interpretation of Highway Law § 139(2), which found that it did not apply to sidewalks.2 The Hart decision thus creates a split among the Appellate Division departments as to whether lack of prior written notice is sufficient to defeat suits against counties who have enacted these requirements. It is uncertain whether the Court of Appeals will address this issue. In the meantime, counties and attorneys should remain cognizant of the contrasting interpretations.

If you have any questions regarding the content of this alert, please contact Kristen Abele, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area. 

1Hart v. City of Buffalo, 218 A.D.3d 1140 (4th Dep’t 2023).
2Zash v. County of Nassau, 171 A.D.2d 743, 744 (2d Dep’t 1991).


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