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Quiescent Years

It was then Chief Judge Cardozo who said: "Not likely vacated is the verdict of quiescent years." (Coler v. Corn Exchange Bank, 250 NY 136 [1928]) We have always loved that quote and had it taped to our fluorescent desk lamp throughout our years at Flatbush Law. The law is old, like fine port. We who love it, sip it gently, rolling it around our mouths with the respect it deserves. Sure, there are those times that we uncork an ancient principle only to find vinegar, but there are few of those bottles left. What remains then, is pure gold.

As much as we avoid reviewing Court of Appeals cases in MondayMonday (there are other places where you can read that), sometimes something from Eagle Street catches our eye. So, we open this resurrected issue of MondayMonday on such a high note and talk a bit about this week's Hinton v. Village of Pulaski, 2019 NY Slip Op 01261 (2/21/19).

In the Village of Pulaski, near the shores of Lake Ontario, it is written that one cannot hold the Village responsible for a personal injury suffered as a result of a defect in a "street, highway, bridge, culvert, sidewalk or crosswalk" unless the Village has received prior written notice of that defect. Most of us are familiar with such useless statutes, designed solely as a trap for the unwary, but we live with them because we have no choice. Randall Hinton, however, managed to fall while walking down an exterior stairway which connected a public road to the Village's municipal parking lot, injuring himself. Note that the Village of Pulaski Code addressing the necessity of prior written notice does not include "stairways." Is our hero saved? Does justice find Andy Hardy?

No (and you knew that, didn't you?) The Court of Appeals reminds us that in Woodson v. City of New York, 93 NY2d 936 [1999], the Sages of Eagle Street determined that a "stairway" could be classified as a "sidewalk" for purposes of a prior written notice statute, if it "functionally serves the same purpose that a standard sidewalk would serve." What "purpose" is that? Why, "provid[ing] a passageway for the public," of course! This makes no sense whatsoever, other than saving the sorry rump of the besotted draftsman who simply left out the word "stairway" in the statute. But the Court, going back to those "quiescent years", notes that for 20 years, since Woodson, the Legislature did nothing about the omission, though it could have. What does this mean? it means that settled precedent is as good as the law it creates. Precedent is not "lightly to be set aside," a remedy best left to the Legislature who created the problem in the first place. The Court reminds us it is bound by that rule of law, not the personalities that interpret it. Plaintiff's action is dismissed. Judge Wilson, dissenting in a lengthy opinion with Judge Fahey, opens his opinion with the searching question of how a stairway can be a "sidewalk" after the invention of the escalator? We'll be damned if we know.

How's that port tasting now? A bit sharp? Then savor this: "But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey." Cardozo, The Nature of the Judicial Process (Yale University Press, 1921), at 111-112.

Feel better? Mr. Hinton doesn't, we are sure. Still, we fight on, as announcer Bill Kennedy intoned on "The Adventures of Superman", in a "never-ending battle for truth, justice and the American way," though we'd be less than candid if we didn't admit that these tights can be a bit itchy at times. 


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Contacy Jay Breakstone
You don’t have to go it alone. Jay Breakstone, Appellate Counsel with Parker Waichman LLP, is here to help. You can ask Jay Breakstone your question right now, here on this website.
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                         Who is Jay Breakstone?
Jay Breakstone
Jay L. T. Breakstone is one of the foremost appellate attorneys in the country in the field of personal injury. With over 30 years’ experience as a practicing attorney.

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                         About Parker Waichman
Parker Waichman
Parker Waichman LLP has been fighting for the rights of victims for over two decades. Parker Waichman LLP is one of the preeminent personal injury law firms in the US.
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