Recently, the Court of Appeals’ decision in Calabrese v. City of Albany, 2024 N.Y. Slip Op. 6289 [Ct App Dec. 17, 2024], established a notable new precedent expanding the avenues by which prior written notice may be given to the statutory designee. This decision has the potential to profoundly change the litigation landscape in the context of municipal liability cases.
Background
In July 2019, the plaintiff was injured when he lost control of his motorcycle on Lark Street in the City of Albany [“City”] and claimed that the accident was caused by a road defect that the City knew about and had failed to repair. Like many other municipalities, the City is the beneficiary of a notice statute that immunizes it from liability—except in cases of affirmative negligence or special use—unless it has received prior written notice of the defect and a reasonable opportunity to address it (see, Albany City Code former § 24–1, [“Statute”]). In Calabrese (supra), the City’s Department of General Services (DGS) had received a number of complaints about a defect near the accident site reported through an online reporting system called “SeeClickFix” (SCF).
The Supreme Court, Albany County (Christina Ryba, J.) denied the City’s motion for summary judgment, which had sought to win dismissal on the grounds that there had not been prior written notice of the hazardous condition which caused the plaintiff’s accident. The Appellate Division, Third Department affirmed, on the grounds, inter alia, that prior complaints registered through the City’s online reporting system could qualify as prior written notice (see, Calabrese v. City of Albany, 221 AD3d 1152 [3d Dept., 2023]). The primary question in front of the Court of Appeals [“Court”] was whether the reports to the City through SCF can be [1] “written notice” of the defects, and [2] deemed “actually given” to the official designated by statute to receive such notice.
“Written Notice”
The Court held that a report typed into the SCF system by a user and then transmitted to the DGS is a “written” communication within the meaning of the Statute. In addition to noting that electronic communications fall within the plain meaning of the word “written,” the Court emphasized that the features of the SCF system align with the policy underlying the prior written notice requirement because: [1] the SCF was the City’s sole process for recording road defect reports, including each defect’s reported location and the date and time each report was received by DGS, and [2] the SCF system did not route such reports through any third party. In contrast, the Court noted that any notices received verbally, e.g., via telephone, and then memorialized by the DGS staff in the SCF system do not qualify as “written.”
In addition, while the Court recognized that a municipality may choose to provide a different definition of “written notice” in its prior notice statute, it noted that “any ambiguity in what constitutes a writing under the statute must be strictly construed against the City.”
“Actually Given to the Statutory Designee”
Despite the fact that the SCF reports only went to the appropriate municipal agency [i.e., DGS], without being addressed to or personally reviewed by its Commissioner, who is designated by title as the proper recipient in the Statute, the Court held that the notices were “actually given” to the statutory designee. This determination was based on an examination of the specific process for routing and maintaining the road defect reports received through the SCF system.
The Court noted that the DGS created the SCF system for processing complaints that “bypassed” the need for the Commissioner’s personal review. DGS used SCF to receive, track, and follow up on notices provided through SCF, as well as notices received through all other channels, and subsequent repairs were then documented in the same system. While the Commissioner opted to receive a spreadsheet listing reported complaints and work done to address them instead of personally reviewing the SCF system, the Commissioner promoted SCF as a tool for reporting road defects within the City.
Particularly, the Court emphasized that SCF was the DGS’ only internal system for tracking those complaints and any remedial work done in response, distinguishing the case from Horst v. City of Syracuse, 191 AD3d 1297 [4th Dept., 2021], where a prior notice statute was not satisfied by reports submitted via a web-based complaint system that “were maintained in an electronic format and were separate from the written notices kept in the office of the commissioner.”
In addition, the Court noted in a footnote that “the SCF disclaimer requiring the user to accept that use of the system does not provide statutory notice does not operate to undo notice actually made in compliance with the [S]tatute.”
Conclusion
The Calabrese decision considers the advance in technology and modernizes the prior written notice requirement for municipal liability. While the interpretation and application of this new precedent in the lower courts is still evolving, it undoubtedly offers an additional route for a plaintiff’s claims to satisfy the notice requirement and survive a municipality’s summary judgement motion.
Based on the Court’s reasoning, a successful invocation of this route seems to turn on the definition of the “written notice” in the relevant notice statute, the specific process for routing and maintaining the reports received through the system by the relevant municipal agency, and the existence of other parallel systems supplying written notices to the statutory designee. All of these issues shall be diligently pursued by counsel during the discovery process.
The Horn Appellate Group will continue monitoring developments in this area and leverage this new precedent to procure favorable outcomes for our clients in motion practice and appeals.