In Dick v. Wappinger, plaintiff filed an action to recover damages for personal injuries against the Town of Wappinger when she fell at the entrance to the NYS police barracks in Wappinger Falls. The Town leased the building to the NYS police pursuant to a written lease. The Town moved for summary judgment on the ground that it did not receive prior written notice of the defect. The Supreme Court, Dutchess County, granted the motion. On appeal, the Appellate Division, Second Department, reversed.

The Appellate Division ultimately found that when a municipality leases property and acts as a landlord, it is subject to the same principles of tort law as a private landlord. Accordingly, the plaintiffs were not required to establish prior written notice to the Town of the alleged defect in order to maintain an action against the Town.

Two Justices dissented from the majority opinion, arguing that there are only two exceptions to the written notice rule: 1) where the municipality created the defect; or 2) where a special use is found. The dissenting Justices argued that the majority’s ruling improperly created a third exception: where the municipality functions in a proprietary capacity.

Thanks to Robin Green for her contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_04371.htm