POTHOLE LAWS, APPELLATE COURTS, AND JUDICIAL DRIFT.

• Date: 22 September 2018
• Author: Gartner, Kenneth L.

POTHOLE LAWS, APPELLATE COURTS, AND JUDICIAL DRIFT

1. INTRODUCTION

   This article begins by describing the structure of the appellate system in New York state, introducing the features of the typical New York pothole law, and summarizing the New York cases that set the substantive and procedural background for a discussion and analysis of judicial drift.

   1. New York's Appellate Structure

      Although the names of the primary appellate courts in New York's multi-level judicial hierarchy can puzzle those who do not practice in New York, their roles can be summed up in two statements: First, the New York Court of Appeals is the state's highest court. (1) Second, the New York Supreme Court, which is the state's trial court of general jurisdiction, (2)" acts through the four Departments of its Appellate Division as the state's intermediate appellate court. (3)

      Thus, although the name of the Appellate Division of the New York Supreme Court might suggest otherwise, it is the New York Court of Appeals that "stands at the apex of a hierarchy of appellate courts" in the state. (4) The "basic premise" underlying New York's system of appellate courts is that intermediate courts "will dispose with finality of the great majority of the appeals, leaving for further review by the State's tribunal of last resort, the Court of Appeals, only a relatively small number of selected cases worthy of such further review." (5) In fact, "[t]he primary function of the Court of Appeals, like that of the United States Supreme Court in the Federal sphere, is conceived to be that of developing an authoritative body of decisional law for the guidance of the lower courts, the bar and the public." (6)

      Decisions of the Court of Appeals are controlling authority as to all inferior appellate courts in New York, including the Appellate Divisions, as well as to all trial courts in the state. (7) Decisions of any Appellate Division are controlling authority in all Supreme Courts within that judicial department. (8)

   2. New York's Pothole Laws

      In New York, "[p]rior written notice statutes create conditions precedent to commencement of a negligence action against a municipality," providing that "before a person may begin an action against a municipality... for a defect in a roadway or sidewalk which caused injury, the entity must have prior written notice of that defect or the action may not be maintained." (9) Colloquially known as pothole laws, these statutes "were enacted to limit municipal liability, and to reduce the amount of money paid out in sidewalk and roadway claims." (10)

   3. Two Relevant New York Precedents: Yarborough and Indig

      In Yarborough v. City of New York, (11) the Court of Appeals held that once a municipality establishes in a pothole case that there is a lack of written notice, "the burden shifts to the plaintiff to demonstrate... that the municipality affirmatively created the defect... or that a special use resulted in a special benefit to the locality." (12) And in Indig v. Finkelstein, (13) the Court of Appeals held that the plaintiff's burden on summary judgment is not met by an allegation in a pleading. (14) Facts and evidence are required. (15)

2. JUDICIAL DRIFT IN THE SECOND DEPARTMENT

   1. Judicial Drift Defined

      Judicial drift can occur in two ways. One is when a statement in a court's decision, appropriately applied in that case, is applied out of context as controlling authority in another case. The second is if a case sets forth a holding that is appropriate for its given facts, but is then applied in further cases in which the underlying facts become over time less and less on point with the original case.

      Justice Dillon of the Appellate Division, Second Department, has recognized the danger of judicial drift, describing it as a concept that,

      while not discussed openly anywhere in New York's case law, is considered behind closed doors at appellate courts. It is a concept about which appellate courts are concerned and guard against. "Judicial drift" regards the unintended expansion of case law by applying one innocuous sentence of a decision to a broader set of circumstances in a later case that was never initially intended or foreseen. (16) This article addresses an example of judicial drift in Justice Dillon's own court--drift that has resulted in the Second Department's contradicting the Court of Appeals and has also led to a split among the departments of the Appellate Division.

      After drifting into this change, the Second Department is now essentially trapped by a growing body of its own precedent. Because the Court of Appeals may not, other than in circumstances not implicated here, review non-final orders, the change in the law into which the Second Department has drifted is unreviewable. (17) It will remain unreviewed unless either the Second Department itself certifies the issue for review or a plaintiff in a case from another department risks asking the Court of Appeals to impose the Second Department's formulation on the other departments.

      This change in the law can be traced through a series of decisions (18) in which the Second Department has taken a remark in Winegrad v. New York University Medical Center about the evidentiary standard for summary judgment in medical-malpractice cases, and

      * changed and expanded it,

      * given it new burden-shifting significance,

      * applied it to personal-injury actions against third parties who contract with landowners alleged to have created or maintained dangerous conditions on their properties, and only then

      * applied it, as expanded, to pothole actions against municipalities.

      These Second Department decisions have effectively countermanded the rule recognized by the Court of Appeals in Yarborough, shrinking the safe harbor created by pothole laws.

      This situation may prove intractable for some time. All of the pothole cases in which the Court of Appeals has addressed the issue involved summary judgments dismissing plaintiffs* complaints, so in every one of them a plaintiff was seeking review of a final order. But the Second Department's new doctrine will always result in non-final orders (denials of summary judgment motions filed by municipal defendants), which will keep pothole cases active. Review by the Court of Appeals will in consequence be difficult to secure. (20)

   2. The Second Department's Drift into Changing the Law: The Decision in Fornuto

      The plaintiff in Fornuto v. County of Nassau (21) was injured when he fell off his bicycle after slipping on loose pebbles left on a paved trail weeks after a pothole repair by the municipality. The Second Department held that because affirmative creation is an exception to the pothole law, once the plaintiff alleged that the municipality had affirmatively created the condition, it was the municipality's burden on summary judgment to come forward with evidence to disprove the allegation.""" When asked to allow the Court of Appeals to review this determination, the Second Department refused. (23)

   3. Behind the Decision in Fornuto: The Decisions in Beiner and Loghry

      Shortly before Fornuto, the Second Department had decided Beiner v. Village of Scarsdale (24) and Loghry v. Village of Scarsdale. (25) Each made clear that the sort of allegation later confirmed in Fornuto as shifting the burden on summary judgment in a pothole case was made in a pleading alone. Using virtually identical language in each opinion, the Second Department concluded in both cases that "the prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings." (26) Its analysis was brief:

      The plaintiff alleged, in her pleadings, that the defendant negligently maintained and repaired the sidewalk and affirmatively created the defective condition that caused the accident. Thus, to establish its prima facie entitlement to judgment as a matter of law, the defendant was required to demonstrate, prima facie, both that it did not have prior written notice of the alleged defect, and that it did not create the alleged defect. (27) Because the primary authority relied upon in Beiner and Loghry--which, like Fomuto, contradict Yarborough and Isrig--was Foster v. Herbert Slepoy Corp., (28) a review of the cases preceding Foster is necessary to an understanding of how judicial drift brought the law in the Second Department to this point.

   4. Behind the Decisions in Foster, Beiner, and Loghry: The Decisions in Winegrad and Alvarez

      1. The Winegrad Decision

         The Second Department purported in Foster to rely on Winegrad (29) when giving allegations in pleadings a significance at odds with the established rule that a plaintiff's burden on summary judgment is not met by mere allegations. But Winegrad stands only for the proposition that when a pleading in a medical-malpractice case apprises the defendants of the elements of the plaintiff's claim, the defendants must, in order to make out a prima facie case for summary judgment, address those pleaded...