Larkin v. City of Cohoes, 33 N.Y.2d 162 (1973)
Parties to a civil litigation may consent, formally or by their conduct, to the law to be applied, especially when no strong countervailing public policy exists.
Summary
Larkin sued the City of Cohoes for injuries sustained from a fall caused by a defective sidewalk. The City initially pleaded a local ordinance requiring prior notice of the defect. At trial, both parties proceeded on the theory that actual notice to the Commissioner of Public Works was sufficient, and the jury found for Larkin. Post-verdict, the City discovered the ordinance actually required written notice and moved to set aside the verdict. The Court of Appeals held that the City was estopped from relying on the written notice requirement because it had acquiesced to the actual notice theory throughout the trial. The case was remitted to the Appellate Division for review of the facts.
Facts
Larkin fell and sustained injuries due to a defective sidewalk in the City of Cohoes. She sued the city for negligence. The City’s answer to the complaint cited a local ordinance requiring prior notice of the defective condition to the Common Council or Commissioner of Public Works. Prior to trial, the city provided a copy of the ordinance to the court. At trial, Larkin introduced evidence that the Commissioner of Public Works had seen the defect prior to her accident. The jury was instructed that actual notice was required and found in favor of Larkin. Post-trial, the City discovered that the relevant ordinance actually required written notice of the defect, not merely actual notice.
Procedural History
The trial court denied the City’s motion to set aside the verdict. The Appellate Division reversed, holding that the judicial notice statute (CPLR 4511(a)) mandated reversal. Larkin appealed to the New York Court of Appeals.
Issue(s)
Whether a municipality can be estopped from asserting a statutory written notice requirement for sidewalk defect claims when it acquiesced to a trial based on actual notice, and whether there is a strong countervailing public policy preventing such estoppel.
Holding
No, the order appealed from should be reversed. The City is estopped because it consented to litigating the case on an actual notice theory. There is no strong countervailing public policy that would prevent estoppel in this case.
Court’s Reasoning
The Court of Appeals rejected the Appellate Division’s reliance on the judicial notice statute. Instead, it focused on the parties’ conduct during the trial. The Court stated that “parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied.” The court emphasized that the case was tried from the beginning on the theory of actual notice, with the City’s acquiescence. The court found no strong public policy reason to override this consent. The purpose of municipal notice statutes is “to enable the city to prevent accidents by repairing or guarding defects or obstructions [in the streets], thus protecting the traveling public.” Allowing the City to change its legal theory after the verdict would undermine fairness. The court noted that different municipalities have different types of notice statutes (actual, written, or constructive), suggesting flexibility in achieving the underlying policy goal. The Court distinguished the