In July 1988 plaintiff, an infant, was seriously injured when he was struck while bicycling on Palmer Road in the Town of Schodack, Rensselaer County, by a car driven by defendant Kimberly Keenan. Suit was subsequently brought on plaintiff's behalf against Keenan and defendant Town of Schodack. The theory of liability asserted against the Town was that it had negligently failed to trim or remove brush, foliage and vegetation along Palmer Road which had become so overgrown that it obscured the visibility of motorists along the highway and thereby contributed to the happening of the accident. The Town served an answer containing an affirmative defense setting forth the prior written notice of defect requirements of Town Law § 65-a and alleging that plaintiff had not complied with those requirements.
The case proceeded to trial before a jury. The action against Keenan was settled during plaintiff's proof. Plaintiff introduced evidence tending to establish the exception to the prior written notice requirement contained in Town Law § 65-a, namely, that the "defective, unsafe, dangerous or obstructed condition [along Palmer Road] existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence".
After plaintiff's case was concluded, the Town put on its Superintendent of Highways to testify concerning maintenance on Palmer Road, read portions of plaintiff's examination before trial and then rested "other than to read into evidence a particular portion of the Schodack Town Law", which was deferred until the opening of court the following morning. After a charge conference that morning, counsel for
The case was then submitted to the jury which found that plaintiff had suffered $250,000 in damages and apportioned fault 30% to plaintiff, 60% to Keenan and 10% to the Town. After receiving written submissions from the parties, Supreme Court rendered a decision that determined that Town Code § 154-1 applied and that plaintiff's failure to prove the Town's receipt of prior written notice of the unsafe condition of Palmer Road was fatal to his case. Accordingly, Supreme Court granted the Town's motion to set aside the verdict and dismissed the complaint. Supreme Court rejected plaintiff's objection based on surprise and prejudice from the Town's belated interposition of Town Code § 154-1. The court reasoned that because compliance with an applicable local law requiring prior notice of defect is a condition precedent to suit, which plaintiff was required to plead and prove, he may not complain of the Town's failure to alert him earlier of the existence of the requirements of Town Code § 154-1. This appeal by plaintiff followed.
We reverse. Supreme Court was undoubtedly correct in holding that compliance with the Town's prior written-notice-of-defect law was a condition precedent to plaintiff's maintenance of this action and, thus, noncompliance was not an affirmative defense as to which the Town had any burden to put plaintiff on notice (see, Cipriano v City of New York, 96 A.D.2d 817, 818). In our view, however, Supreme Court gave too little weight to the fact that the Town did plead as an affirmative defense noncompliance with the notice requirement of Town Law § 65-a, under the provisions of which
Thus, when the Town introduced Town Code § 154-1 as the controlling notice requirement, it drastically changed its position at a stage in the litigation when plaintiff was not able to counter it, e.g., by establishing through pretrial discovery that the Town's local law on notice of defect had not been validly adopted. New York applies the doctrine of judicial estoppel to prevent a party from inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding or a prior proceeding (see, Tymon v Linoki, 16 N.Y.2d 293, 297; Liebowitz v Arrow Roofing Co., 259 N.Y. 391, 396; Fryczynski v Niagara Frontier Transp. Auth., 116 A.D.2d 979, 980; Karasik v Bird, 104 A.D.2d 758, 759). This doctrine has been applied in instances where one party has been misled by averments in the other party's pleadings (see, Linton v Unexcelled Fireworks Co., 124 N.Y. 533, 537; Northern Bank v Lowenstein, 150 NY Supp 686, 688; 57 NY Jur 2d, Estoppel, Ratification, and Waiver, § 52, at 79). In our view it is appropriate to apply the doctrine here, estopping the Town from its changing position regarding the efficacy of constructive notice of defect when it belatedly introduced Town Code § 154-1 at the conclusion of the proof. Consequently, the order should be reversed and the verdict in plaintiff's favor reinstated.
The doctrine of estoppel is, in my view, inapplicable in the circumstances presented in this case and, therefore, I respectfully dissent. Inasmuch as the notice requirement is a condition precedent to plaintiff's right to maintain an action against a municipality, defendant Town of Schodack was under no obligation to assert the requirement as an affirmative defense or prove plaintiff's noncompliance (see, Cipriano v City of New York, 96 A.D.2d 817, 818). It was plaintiff's obligation to plead and prove compliance with the relevant condition precedent and such compliance is part of
When the parties to an action proceed under a mistaken theory as to the type of notice required as a condition precedent, the relevant consideration is not the doctrine of estoppel, but instead the question is whether the parties have consented, formally or by their conduct, to the law to be applied (see, Martin v City of Cohoes, 37 N.Y.2d 162, 165-166). When a case is tried from the very beginning on the theory of actual notice and the jury returns a verdict in favor of the plaintiff after being charged without exception on the theory of actual notice, the municipality has consented to such theory and cannot thereafter assert the existence of a prior written notice requirement (supra). Here, however, the Town raised the prior written notice requirement before the matter was submitted to the jury and, therefore, did not consent to the application of the wrong law.
Plaintiff argues that even if the notice issue is governed by
Supreme Court correctly applied the local law and its order should be affirmed.
Ordered that the order is reversed, with costs, verdict in plaintiff's favor reinstated, and matter remitted to Supreme Court for further proceedings not inconsistent herewith.