Defendant-Appellant (hereinafter, "56-60 Broadway") has appealed a small claims judgment from the Village of Monticello Justice Court (Hon. Leo Glass), rendered after trial on August 16, 2017, awarding Plaintiff-Respondent (hereinafter, "the Village") a judgment against 56-60 Broadway in the sum of $2,050.76 plus interest, costs, and disbursements, as a result of repair work completed by the Village on 56-60 Broadway's water service pipeline. The Village filed a Respondent's Brief, and 56-60 Broadway filed a Reply Brief.

The record on appeal reflects that the Village brought the underlying action seeking a judgment against 56-60 Broadway in the sum of $2,050.76 plus interest, costs, and disbursements as a result of their repair of 56-60 Broadway's water service pipeline, which ran from the Village's water main to 56-60 Broadway's property. At trial, the Village called the Village of Monticello Water Superintendent Phil Klemen as its witness. Testimony at trial established that on or about February 18, 2015, Mr. Klemen was notified that water was running down and across [*2]the street of Broadway. In order to stop the water flow, the water main was shut off above 56-60 Broadway's property, which cut off water supply to at least seven (7) consumers on Broadway and nearby side streets. The Village's repair crew excavated the affected area and found that "an old and badly rusted service pipe" connecting the Village's water main to 56-60 Broadway's property had failed, causing the water leakage. The Village's repair crew fixed 56-60 Broadway's water service pipeline and sent an itemized bill in the sum of $2,050.76 to 56-60 Broadway.^[FN1] This bill was not paid, and the underlying action was commenced.

56-60 Broadway filed an Answer containing four (4) affirmative defenses and a counterclaim. In sum and substance, the crux of 56-60 Broadway's defense is that they claim that the Village failed to provide them with the adequate ten (10) day notice to repair pursuant to §256-68 of the Code of the Village of Monticello. Pursuant to Village of Monticello Code §256-68, the property owner must repair any leak or breakage in the line between the Village water main and the property owner's meter within ten (10) days' written notice of such leak or breakage. These repairs are to be done at the property owner's sole cost and expense. 56 Broadway alleges that because the Village did not give this notice prior to repairing the water service pipeline, it is not responsible for the cost of repairing the water service pipeline.

The Village—as established by Mr. Klemen's testimony—argued that due to the freezing conditions, the water flowing down Broadway created inherently dangerous conditions for traffic and pedestrians. There was the risk of the water freezing or otherwise creating unsafe conditions if the water main remained open, as the water would continue to flow down Broadway. Further, the only way to stop the water flow was to shut off the water main, which caused at least seven (7) properties to have no running water and would continue to have no water for so long as the water main was shut off. Because of these repercussions, Mr. Klemen testified that he instead had 56-60 Broadway's water service pipeline replaced so that the water ceased flowing down Broadway and the water main did not need to remain shut off, without providing 56-60 Broadway with the ten (10) day written notice to repair pursuant to Village of Monticello Code §256-68.

At the underlying trial herein, 56-60 Broadway's attorney moved to dismiss the Village's complaint based upon Mr. Klemen's failure to abide by Village of Monticello Code §256-68. Honorable Leo Glass of the Village of Monticello Justice Court reserved on its decision. Mr. Klemen testified for the Village, and entered into evidence the May 11, 2015 bill and enclosure letter to 56-60 Broadway, as well as the Village of Monticello Water Department's 2015 standard diary which outlined the repair work performed by the Water Department. On cross-examination, Mr. Klemen testified that he did not notify 56-60 Broadway's owners of the leak, nor did he provide the ten (10) day written notice to repair pursuant to Village of Monticello Code §256-68. Subsequent to Mr. Klemen's testimony, the Village rested. 56-60 Broadway did not call any witnesses and did not offer any testimony or evidence.

In its Decision and Order dated August 16, 2017, the Village of Monticello Justice Court ruled in favor of the Village and rendered a judgment against 56-60 Broadway in the sum of $2,050.76 plus interest, costs, and disbursements. 56-60 Broadway's counterclaims and [*3]affirmative defenses were dismissed, with the exception that it was uncontroverted that no ten (10) day notice was given. Justice Glass found that 56-60 Broadway failed to present any evidence or testimony supporting its claims or contradicting the reasonableness of the Village's itemized bill. Justice Glass found that the leaking water main and the conditions it caused to Broadway constituted a "force majeur" that excused Mr. Klemen's failure to provide ten (10) day's written notice to 56-60 Broadway regarding the leak. "Phil Klemen wisely, and in the reasonable exercise of his duties, dug up [56-60 Broadway's] pipe line to be repaired, filled the hole and turned on the water for all of those lucky people down stream and subsequent vehicular traffic."

Judgments in small claims matters are not to be disturbed unless an appealing party can show that "substantial justice has not been done between the parties...." UJCA §1807. Small claims judgments are not to be modified on judicial review "'unless they are clearly erroneous.'" Borman v. Purvis, 299 AD2d 615, 616 (3d Dept 2003), citations omitted.

At issue in this matter is Village of Monticello Code §256-68, subtitled "Leaks and Breakages," which states in its entirety:

Any leak or breakage in the line between the Village water main and the meter shall be repaired by the property owner and at the property owner's sole cost and expense. Upon written notice of such leak or breakage to the property owner by the Village, the property owner must repair such leak or breakage within 10 days from the date of such notice. Should the property owner fail to so repair such leak or breakage within such ten-day period, the Village of Monticello shall have the right to cause such repairs to be made and to enter upon the property owner's lands for the purpose of making such repairs. All costs to the Village and all charges for materials and labor shall be paid by the property owner to the Village upon submission by the Village of a bill for such charges. Should the property owner fail to pay such charges within the current fiscal year when such charges are made, such charges shall be payable, collectible and enforceable in the manner provided by law for the payment, collection and enforcement of annual Village taxes in the Village of Monticello, and, if unpaid on the grace date therefor, shall constitute a lien upon the real property, and such lien shall be proper and superior to every other lien or claim except a lien of an existing tax, water charge, or local assessment. [Emphasis added].

It is well settled that prior written notice laws are in derogation of the common law and therefore must be strictly construed. Statutes Law §301; Windsor Court Associates, LP v. Villlage of New Paltz, 27 AD3d 814 (3d Dept 2006); Groninger v. Village of Mamaroneck, 17 NY3d 125 (Ct App 2011); Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 (Ct App 2008); Amabile v. City of Buffalo, 93 NY2d 471 (Ct App 1999).

In the instant matter, the record does not support the lower court's decision. Borman, supra. It is clear from the evidence and testimony rendered during the underlying hearing that the Village failed to provide the requisite notice to 56-60 Broadway prior to entering onto the property and causing the repairs to be made. In fact, it appears that 56-60 Broadway had no notice of the repairs until its receipt of the May 11, 2015 bill for the Village's Water Department services. It is unrefuted that 56-60 Broadway had no written or constructive notice of the repairs needed, and therefore was not given any opportunity to repair same prior to the Village rendering [*4]its service.

Contrary to the Justice Court's finding, there is no force majeure clause in the Village Code and therefore such a clause cannot be relied upon. There is absolutely no ambiguity in interpreting the Code's terms, which was drafted by the Village legislature. The Village Code plainly states that the Village was required to provide 56-60 Broadway with ten (10) days written notice prior to their entry onto the property and repair thereto. The Village legislature drafted the Village Code and had the opportunity to include exceptions to providing ten (10) days notice to property owners in emergency situations and the like, yet failed to include any. As such, 56-60 Broadway is not responsible for the costs and expenses associated with the repairs completed by the Village.

Based upon the above, it is

ORDERED, that the within appeal is granted in its entirety; and it is further

ORDERED, that the Decision and Order dated August 16, 2017 is reversed and vacated; and it is further

ORDERED, that the Village's small claims matter for payment of repairs rendered is dismissed, with prejudice.

This shall constitute the Decision and Order of this Court.