Giacobbe v City of New Rochelle

Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on March 19, 2026

2024-1163 W C

Present: : Joseph R. Conway, J.P., Maria S. Vazquez-Doles, Maureen T. Liccione, JJ.

Morris, Duffy, Alonso, Faley & Pitcoff (Iryna S. Krauchanka and Lauren Casparie of counsel), for appellant.

Anthony Giacobbe, respondent pro se.

Appeal from a judgment of the City Court of New Rochelle, Westchester County (Jared R. Rice, J.), entered October 16, 2024. The judgment, after a nonjury trial, awarded plaintiff the total sum of $2,317.09.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a judgment dismissing the action.

Plaintiff commenced this small claims action to recover $2,198.64, representing damage to his vehicle on May 2, 2024 after a large pothole at the intersection of Church Street and Davenport Avenue in the City of New Rochelle caused two flat tires and damaged a rim. Following a nonjury trial, the City Court (Jared R. Rice, J.) entered a judgment on October 16, 2024 awarding plaintiff the total sum of $2,317.09.

In a small claims action, appellate review is limited to determining whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, [*2]269 AD2d 125 [2000]).

Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice (see Lyons v Inc. Village of Garden City, 225 AD3d 679 [2024]). At the relevant time, the New Rochelle City Charter article XII § 127A provided, in part, that no civil action shall be maintained against the city for damages or injuries to person or property sustained as a consequence of, inter alia, any street or any other public place being defective, out of repair, unsafe, or dangerous "unless written notice thereof, specifying the particular place, had actually been given to the Commissioner of Public Works prior to the happening of the event causing such damage . . . and there was a failure or neglect by the city to repair or remove the defect, danger or obstruction . . . within a reasonable time after the receipt of notice relating to it." " 'Because this prior written notice provision is a limited waiver of sovereign immunity, in derogation of common law, it is strictly construed' " (Kolenda v Incorporated Vil. of Garden City, 215 AD3d 647, 648 [2023], quoting Katz v City of New York, 87 NY2d 241, 243 [1995]).

Plaintiff testified that neither he nor anyone he knew ever submitted any written notice to the Commissioner of Public Works. Defendant's witness, the Manager of the Streets and Highways Department, testified that he conducted a search and found no complaints on file with the Commissioner of Public Works with respect to a pothole at Church Street and Davenport Avenue. While the evidence contained a report dated April 16, 2024 from the New Rochelle Police Department regarding a phone call about a pothole at Church Street and Davenport Avenue, as the New Rochelle Police Department is not a statutory designee to receive notice, such report, even if considered a written notice, did not constitute notice to the Commissioner of Public Works, as required by the New Rochelle City Charter article XII § 127A (see Gorman v Town of Huntington, 12 NY3d 275 [2009]; Lyons v Inc. Village of Garden City, 225 AD3d 679; Misek—Falkoff v Village of Pleasantville, 207 AD2d 332 [1994]). Consequently, there was no prior written notice sufficient to maintain an action against the City of New Rochelle.

Accordingly, substantial justice (see UCCA 1804, 1807) requires that the judgment be reversed and the action dismissed.

CONWAY, J.P., VAZQUEZ-DOLES and LICCIONE, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 19, 2026