
    Leona Holt, Respondent, v County of Tioga, Appellant.
    Argued May 4, 1982;
    decided June 15, 1982
    
      POINTS OF COUNSEL
    
      Peter J. Walsh and Nathaniel F. Knappen for appellant.
    I. Tioga County Local Law No. 2 of 1978 is authorized by the Municipal Home Rule Law and is not in express conflict with general State law. (Fullerton v City of Schenectady, 285 App Div 545, 309 NY 701; Lighthouse Shores v Town of lslip, 41 NY2d 7; Belle v Town Bd. of Town of Onondaga, 61 AD2d 356; New Rochelle Trust Co. v White, 283 NY 223; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228, 256 NY 619; People v County of Westchester, 282 NY 224; McMillen v Brown, 20 AD2d 531; Matter of Reuss v Katz, 43 Misc 2d 921; People v Del Gardo, 1 Misc 2d 821.) II. The State has not evinced an intent to pre-empt the field of prior notice requirements for counties. (Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327,12 NY2d 998; Matter of Marino v Town of Ramapo, 68 Misc 2d 44; Pennsylvania v Nelson, 350 US 497; Hines v Davidowitz, 312 US 52; People v Broady, 5 NY2d 500, 361 US 8; People v Lewis, 295 NY 42; People v Cook, 34 NY2d 100.) III. A finding of unconstitutionality would vitiate other legislative enactments. (Marcus Assoc. v Town of Huntington, 45 NY2d 501; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Childs v Childs, 69 AD2d 406.)
    
      
      Peter H. Bouman and James P. O’Brien for respondent.
    I. Defendant’s prior written-notice ordinance is inconsistent with general State law and is therefore unconstitutional. (Matter of Wilson v Board of Supervisors of County of Oneida, 152 Misc 645; Little v County of Suffolk, 73 AD2d 663; Lopes v Rostad, 45 NY2d 617; Thomas v Consolidated Fire Dist. No. 1 of Town of Niskayuna, 50 NY2d 143; MacMullen v City of Middletown, 112 App Div 81, 187 NY 37; Fullerton v City of Schenectady, 285 App Div 545; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; MacPherson v Buick Motor Co., 217 NY 382.) II. Local Law No. 2 denies citizens equal protection of the law. III. Local Law No. 2 deprives citizens of due process of law. (Snyder v Massachusetts, 291 US 97.) IV. Tioga County’s Local Law is not authorized by section 50-e of the General Municipal Law. (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362.)
   OPINION OF THE COURT

Jasen, J.

The issue raised by this appeal is whether a local law which makes prior written notification of a dangerous condition or defect a condition precedent to maintaining a suit against the county conflicts with the general State law which imposes liability on the county for injuries caused by unsafe or improperly maintained highways so that it must be declared unconstitutional.

Plaintiff Leona Holt brought this action against the County of Tioga to recover actual and punitivé damages for injuries she sustained in a one-vehicle accident on a county-owned highway. In her complaint, she alleged that the shoulder of the highway was defective because it was lower than the paved portion of the highway and that this defect caused her to lose control of her truck and strike a tree. She also alleged that the county failed to inspect or repair the road and was thus grossly negligent.

The county raised, in its answer, the affirmative defense that the plaintiff did not plead or prove compliance with Tioga County Local Law No. 2 of 1978 and moved to dismiss the complaint. Plaintiff moved for a day certain and in response to the defendant’s motion to dismiss, plaintiff asserted that she had complied with Local Law No. 2, that the county should be estopped from raising the issue and that the local law was unconstitutional. Special Term granted plaintiff’s motion tq the extent of setting a trial date and denied, without comment, defendant’s motion to dismiss.

The county brought an appeal from' that order. The Appellate Division ordered the affirmative defense in question struck on the ground that Local Law No. 2 was unconstitutional. In so holding, the Appellate Division stated that although there is a strong presumption that local laws are constitutional, a local law cannot stand if it conflicts with a general law passed by the State Legislature. Because section 139 of the Highway Law, a general law, imposes liability on counties without reference to any prior notification requirements, the Appellate Division reasoned that any local law which imposes a condition precedent is inconsistent and, thus, unconstitutional. The Appellate Division granted leave to appeal to this court on a certified question so that we might consider whether the Appellate Division correctly found Local Law No. 2 to be unconstitutional. For the reasons that follow, we hold Local Law No. 2 to be constitutional.

When a locality exercises the legislative power delegated to it by the State Constitution, there is an “exceedingly strong presumption” that the local law enacted is constitutional. (Lighthouse Shores v Town of lslip, 41 NY2d 7, 11.) In order to defeat that presumption of validity, a party must show that the local law in question is inconsistent with either provisions of the State Constitution or with a general law enacted by the State Legislature.

Local governments, including counties, are authorized by the State Constitution to “adopt and amend local laws * * * relating to * * * [t]he presentation, ascertainment and discharge of claims against it [or] [t]he acquisition, care, management and use of its highways, roads, streets, avenues and property.” (NY Const, art IX, § 2, subd [c], par [ii], els [5], [6].) This constitutional authority is implemented by identical provisions in subdivision 1 of section 10 of the Municipal Home Rule Law. Section 3 of article IX further provides that: “Rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed.” (NY Const, art IX, § 3, subd [c].) But section 2 of article IX also restricts the power granted local governments by providing that only laws which are “not inconsistent with the provisions of this constitution or any general law” may be enacted. A general law is defined by article IX (§ 3, subd [d], par [1]) as one “which in terms and effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.” Thus, the specific question raised by this appeal is whether the local law in question is inconsistent with either the Constitution or any general law. Since this appeal arises on a certified question, our review is limited to whether Local Law No. 2 is unconstitutional, as the Appellate Division found, because its provisions are inconsistent with section 139 of the Highway Law.

Local Law No. 2 provides in pertinent part that: “No civil action shall be maintained against the County of Tioga * * * for damages or injuries to persons or property sustained by reason of any highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition of such highway, bridge or culvert was actually given to the County Clerk or County Superintendent of Highways, and that there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of”.

Section 139 of the Highway Law, a general law because it applies to all counties in the State, provides that when “a county has charge of the repair or maintenance of a road, highway, bridge or culvert, the county shall be liable for injuries to person or property * * * but the county shall not be liable in such action unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law”. The notice procedure to be used in maintaining a civil action against the county is thus controlled by section 50-e of the General Municipal Law.

That statute requires that in a tort action a notice of claim must be filed within 90 days of when the claim arose. Subdivision 4 of section 50-e further provides: “Requirements of [this] section [are] exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice * * * shall be required as a condition to the commencement of an action or special proceeding * * * provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway * * * where such notice now is, or hereafter may be, required by law, as a condition precedent to liability”.

Reading these statutes together, we do not find Local Law No. 2 to be inconsistent with section 139 of the Highway Law. Local Law No. 2 speaks to the notification required as a condition precedent to maintaining a civil action against a county for negligent maintenance of county highways. Section 139 of the Highway Law has the sole effect of imposing liability on counties for injuries caused by unsafe or improperly maintained highways. As to the procedure necessary to commence an action, section 139 of the Highway Law defers to section 50-e of the General Municipal Law. Subdivision 4 of section 50-e of the General Municipal Law specifically allows for the enactment of prior notification statutes and requires compliance with such laws. There is no indication in the statutory language that the Legislature in any way intended to limit that provision’s applicability. The statutory language makes no distinction between general laws and local laws; it must be read to apply alike to all laws enacted by any legislative body in this State. Similarly, section 139 of the Highway Law contains no provision that can be read to limit the applicability of section 50-e of the General Municipal Law or to bar local laws which impose conditions precedent to maintaining an action against a county. Thus, it cannot be said that the Legislature intended to preclude counties from enacting prior notification statutes when, pursuant to section 139 of the Highway Law, it imposed liability on the counties.

While it is true that prior notification provisions such as Local Law No. 2 are most often designed to bar claims which would otherwise be authorized, that alone is not adequate to overcome the presumption of constitutionality. It cannot be said that statutes enacted under this grant of legislative authority are inconsistent with general laws which merely impose liability but do not speak to the presentation of claims. Rather, it appears that by not specifically addressing the question of prior notification, the Legislature deferred to the judgment of local governments.

In the past, when this court has considered the constitutionality of other prior notification statutes, which were also enacted pursuant to similar delegations of legislative authority, we have found them to be constitutional. In Fullerton v City of Schenectady (285 App Div 545, affd 309 NY 701, app dsmd 350 US 980), this, court affirmed, without opinion, the order of the Appellate Division which dismissed plaintiff’s complaint on the ground that the failure to comply with the City of Schenectady’s prior notification statute meant that the action could not be pursued. In so holding, the Appellate Division found that Schenectady’s prior notification law was authorized by the home rule amendment to the State Constitution, and by both the City Home Rule Law and the Second Class Cities Law. The decision in Fullerton (supra) was based, in part, on this court’s decision in MacMullen v City of Middletown (187 NY 37) in which we held a prior notification provision in a municipal charter to be a valid exercise of legislative power. We see no reason to deviate from those holdings. In this case, as in those, the Legislature has deferred to the localities to determine what notice is required. The County of Tioga, which “exercise[s], by delegation, a portion of the sovereign power” (MacMullen v City of Middletown, supra, at p 41), acted within its constitutionally mandated powers in enacting Local Law No. 2. Neither section 139 of the Highway Law nor section 50-e of the General Municipal Law indicate any intention by the Legislature to restrict the county’s constitutionally delegated powers or to bar prior notification statutes.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, and the second affirmative defense should be reinstated. The question certified should be answered in the negative.

Chief Judge Cooke

(dissenting). A reading of the pertinent constitutional and statutory provisions and case law reveals nothing that authorizes the County of Tioga’s enactment of Local Law No. 2 of 1978. Therefore, I respectfully dissent.

The majority finds two constitutional bases for validating the local law. First, the majority relies on a local government’s authority to legislate as to “[t]he presentation, ascertainment and discharge of claims against it” (NY Const, art IX, § 2, subd [c], par [ii], cl [5]). Reading this in conjunction with subdivision 4 of section 50-e of the General Municipal Law, the majority concludes that Local Law No. 2 is a proper procedural rule. Second, the majority finds the ordinance valid under the county’s power to legislate as to “[t]he acquisition, care, management and use of its highways, roads, streets, avenues and property” (NY Const, art IX, § 2, subd [c], par [ii], cl [6]).

Initially, the nature of laws such as Local Law No. 2 should be determined — i.e., does the ordinance affect procedural or substantive rights. The unavoidable conclusion is that the prior-notice law here is a substantive rule. The ordinance’s entire thrust is to remove from the county the threat that it may be found to have had constructive notice of a defect. As this court noted in discussing the purpose of a similar law in MacMullen v City of Middletown (187 NY 37, 41), “The fact of knowledge should no longer be dependent upon inferences from the evidence of circumstances; nor the liability of the municipality be left to a determination reached upon an indulgent construction of the legal rule as to actual notice.”

The conclusion that the local law is substantive is buttressed by a consideration of section 50-e of the General Municipal Law. A notice of claim under that section is “a condition precedent to the commencement of an action or special proceeding” (General Municipal Law, § 50-e, subd 1, par [a]). And such notice may be served after the action is commenced if, among other concerns, “the delay in serving the notice of claim [has not] substantially prejudiced the public corporation in maintaining its defense on the merits” (§ 50-e, subd 5 [emphasis added]). In contrast, a prior-notice law is characterized as “a condition precedent to liability for damages or injuries” (§ 50-e, subd 4), rather than merely a condition precedent to the commencement of an action. In keeping with its substantive nature, the failure to give such notice is not remediable by a later act.

As a substantive rule of law, then, a prior-notice ordinance does not come within the constitutional language regarding a local government’s power to legislate over “[t]he presentation, ascertainment and discharge of claims against it” (NY Const, art IX, § 2, subd [c], par [ii], cl [5]). The terms of clause (5) sound in procedural, not substantive law.

In addition, when viewed in light of the over-all limitation precluding local governments from legislating inconsistently with the general law of the State (NY Const, art IX, § 2, subd [c], par [ii]), clause (5) cannot reasonably be read to authorize enacting substantive laws. First, a municipality has no immunity from lawsuit greater than that of the State unless authorized by Constitution, statute, or charter (see Bernardine v City of New York, 294 NY 361, 364-365). If clause (5) is to be read as providing such authority, then nothing exists to prevent any municipality from granting itself total immunity. This, of course, is contrary to the policy underlying the Court of Claims Act, which is generally to subject the State and its subdivisions to liability “determined in accordance with the same rules of law as applied to actions * * * against individuals or corporations” (Court of Claims Act, § 8; see Bernardine v City of New York, supra). Second, it is difficult to identify any area of law that is not already the subject of either statute or case law, including rules about constructive notice. Consequently, as a practical matter, no municipality can limit its immunity through the amendment by local law of substantive rules of law without running afoul of the State’s general law as declared in section 8 of the Court of Claims Act. Thus, clause (5) reasonably can be construed as applying only to procedural matters; a contrary interpretation would recognize a grant of power that would be virtually meaningless. And, as a limited grant of power to adopt procedural rules, clause (5) cannot be authority for a substantive law such as Local Law No. 2.

Nor can it be said that subdivision 4 of section 50-e of the General Municipal Law provides any such authority. Section 50-e as a whole is a procedural statute regulating the commencement of actions against municipalities. Subdivision 4 states that section 50-e sets forth the exclusive requirement for serving a notice of claim as a condition precedent to commencing such actions, but that actual notice of the defect is not thereby dispensed with when required by law. The majority, focusing on a single phrase in subdivision 4 — “where such notice now is, or hereafter may be, required by law” (emphasis added) — asserts that this implicitly authorizes local governments to enact prior-notice laws. Accurately read, however, subdivision 4 does nothing more than resolve a potential conflict, present or future.

It should be noted that the terms of subdivision 4 are particularly detailed. Its proviso refers to “the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon”. This substantially repeats the language in subdivision 1 of section 65-a of the Town Law and section 6-628 of the Village Law, both of which are State-enacted prior-notice laws pre-existing section 50-e. A long-standing standard rule of statutory construction is that the Legislature is deemed cognizant of all existing laws (see Davis v Supreme Lodge, Knights of Honor, 165 NY 159, 166; McKinney’s Cons Laws of NY, Book 1, Statutes, p 56). When prior law is contradicted by subsequent legislation there exists the possibility that the Legislature has repealed the former by implication (see Davis v Supreme Lodge, Knights of Honor, supra, at pp 166-167; cf. American Sugar Refining Co. of N. Y. v Waterfront Comm. of N. Y. Harbor, 55 NY2d 11, 30). Rather than broadly reading subdivision 4 of section 50-e to be an implicit grant of power, it should be recognized as nothing more than careful legislative drafting designed to avoid the potential problem of repeal by implication, whether created by the enactment of section 50-e or by a later State enactment of a prior-notice law.

As to the second constitutional basis urged by the majority, it is agreed that, on its face, Local Law No. 2 is within the county’s legislative power as affecting “[t]he acquisition, care, management and use of its highways” (NY Const, art IX, § 2, subd [c], par [ii], cl [6]). The infirmity of Local Law No. 2, however, arises from its conflict with section 139 of the Highway Law, a general law of the State, thereby rendering the ordinance unconstitutional (see NY Const, art IX, § 2, subd [c], par [ii]).

When it has seen fit to do so, the Legislature has enacted statutes limiting a municipality’s duty to maintain its roads and sidewalks in a safe condition to those situations where there is prior written notice of the defect (see Village Law, § 6-628; Town Law, § 65-a). As to townships, however, the Legislature retained the constructive-notice doctrine to the extent of allowing liability to be imposed when “such * * * condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence” (Town Law, § 65-a, subd 1).

In contrast, section 139 of the Highway Law imposes on a county liability for injuries caused by road conditions “existing because of the negligence of the county, its officers, agents or servants.” Other than referring to a requirement that a notice of claim must be served in compliance with section 50-e of the General Municipal Law, section 139 makes no mention of notice — written, oral, actual, or constructive — of the defect as a condition precedent to a finding of negligence. In the absence of such language, counties “are answerable equally with individuais and private corporations for wrongs of officers and employees” (Bernardine v City of New York, 294 NY 361, 365, supra) and thereby subject to liability on the basis of constructive, as well as actual notice. If the Legislature had desired to do otherwise, it clearly'knew how to achieve that goal.

No different result is compelled by the two cases relied on by the majority. Indeed, the local law considered in MacMullen v City of Middletown (187 NY 37, supra), rather than being a “delegation of legislative authority” or a legislative “deferr[al] to the localities to determine what notice is required” (at p 420), was actually part of the city charter (187 NY, at p 39), enacted by the State Legislature itself (L 1902, ch 572). The majority correctly notes that, in MacMullen, this court “held a prior notification provision in a municipal charter to be a valid exercise of legislative power” (at p 420). What the majority overlooks is that the MacMullen ordinance was held a valid exercise of the State’s legislative power in that, in delegating powers to political subdivisions, the Legislature acts supremely and may impose any condition on bringing a civil action against a municipality (MacMullen v City of Middletown, supra, at pp 41-43). Thus, MacMullen offers no support to the majority’s position, as the validity of a local law in a home-rule context was not at issue there.

Nor is Fullerton v City of Schenectady (285 App Div 545, affd no opn 309 NY 701, app dsmd 350 US 980) of any assistance to the majority. The Appellate Division there upheld the local law on the express finding that it was within “the constitutional power of the Legislature to delegate to a city of the second class the right to supersede provisions of a statute that applied to it” (285 App Div, at p 547). No such delegation exists here as to section 139 of the Highway Law. Moreover, although the Legislature has granted towns and villages the power to amend or supersede the Town Law and Village Law, respectively (Municipal Home Rule Law, § 10, subd 1, par [ii], cl d, subcl [3]; cl e, subcl [3]), no such general power has been granted to counties (compare Municipal Home Rule Law, § 10, subd 1, par [ii], cl b). The legal basis for validating the Schenectady ordinance in Fullerton simply is not present in the instant case.

In conclusion, Local Law No. 2 should be recognized as a substantive law in conflict with the provisions of a general law, section 139 of the Highway Law. As such, it is unconstitutional. Accordingly, I would affirm the order of the Appellate Division and answer the question certified in the affirmative.

Judges Gabrielli, Wachtler and Meyer concur with Judge Jasen; Chief Judge Cooke dissents and votes to affirm in a separate opinion in which Judges Jones and Fuchsberg concur.

Order, insofar as appealed from, reversed, with costs, and the second affirmative defense reinstated. Question certified answered in the negative. 
      
       Subdivision 4 of section 50-e of the General Municipal Law reads in its entirety: “Requirements of section exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice, no other or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice.”
     