Can a New York county use its home rule authority to require prior written notice of road defects only to the clerk of the legislative body, rather than to the clerk or the highway superintendent as Highway Law § 139 contemplates?

Plain-English summary

Essex County had enacted a local law requiring prior written notice of defects, snow, or ice on county roads, bridges, and sidewalks as a precondition to a civil suit for related property damage or injury. The local law required notice only to the clerk of the county legislative body. Highway Law § 139(2) authorizes counties to adopt a local law of that general type, but it specifies notice "to the clerk of the governing body of such county or the county highway superintendent." The county attorney asked whether the home rule local law could deviate from the § 139(2) recipient list.

The AG concluded yes, for two reasons stacked together.

First, the local law did not need to be consistent with Highway Law § 139(2) because § 139(2) was not a "general law" for home rule purposes. A general law, under N.Y. Const. Art. IX § 3(d)(1) and Municipal Home Rule Law § 2(5), applies in terms and effect to all counties (or to all counties outside New York City). Johnson v. Etkin (1938) held that a state law applied only when counties elect to adopt it is not a general law. Town of Smithtown v. Howell (1972) similarly treated a statute exempting two counties as a special law. § 139(2) operates at county option, making it special.

Second, the Municipal Home Rule Law affirmatively authorizes the local law's subject matter. Article IX § 2(c)(ii)(5) of the Constitution and Municipal Home Rule Law § 10(1)(ii)(a)(5) grant counties power to enact local laws on the presentation, ascertainment, disposition, and discharge of claims against them. A defect-notice precondition fits directly within that grant. Holt v. County of Tioga (1982) confirmed that a county's prior-notice local law sits within local lawmaking authority.

The AG added a procedural caveat: the local law must comply with Municipal Home Rule Law § 22, which requires the local law to identify any state or local law it amends or supersedes. Kamhi v. Town of Yorktown (1989) treats that designation requirement as substantive, not formal.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does it matter whether Highway Law § 139(2) is a "general law"?

Under Article IX of the New York Constitution and the Municipal Home Rule Law, local laws must be consistent with "general laws" but may, with some restrictions, change "special laws" through home rule. If § 139(2) had been a general law, the county would have been locked into its specific list of notice recipients. Because the AG concluded § 139(2) was a special law (operates at county option), the consistency requirement did not apply.

What does Municipal Home Rule Law § 22 require?

Under § 22, when a local law supersedes or amends a state or local law, it must identify the law affected. The AG noted that the Essex County local law had to make that designation explicit, both as a procedural requirement and as a substantive one under Kamhi.

Does this make the notice law harder for plaintiffs to satisfy?

Practically, having one designated recipient (the clerk of the board of supervisors) may be simpler in some respects, but plaintiffs have to follow the local rule precisely. Whether that benefits plaintiffs or defendants depends on litigation patterns. Either way, the home rule version did not need to track the Highway Law § 139(2) text.

Could a county also expand the list of recipients beyond § 139(2)?

Logic of the opinion suggests yes, again subject to § 22 designation. The home rule grant in Municipal Home Rule Law § 10(1)(ii)(a)(5) covers the presentation of claims against the county broadly; the precise list of recipients is policy.

Background and statutory framework

Article IX of the New York Constitution allocates home rule power. § 2 grants local governments the power to enact local laws. § 2(c)(ii)(5) specifically lists "the presentation, ascertainment and discharge of claims against [the county]" as a permissible subject. § 3(d)(1) defines "general law" as a state law that applies in terms and effect to all counties (or all counties outside New York City), all cities, all towns, or all villages. Local laws must be consistent with general laws.

Municipal Home Rule Law § 2(5) mirrors the constitutional general-law definition. § 10(1)(ii)(a)(5) gives counties the power to enact local laws on claim presentation. § 22 requires a local law to designate any state or local law it amends or supersedes.

Highway Law § 139(2) authorizes counties to adopt a local law providing that no civil action shall be maintained against the county for highway defect or snow/ice injuries unless written notice was given to the clerk of the governing body or the county highway superintendent. The AG read § 139(2) as itself optional, which is what made it a special law rather than a general one.

Citations

• N.Y. Const. Art. IX § 2(b), (c) (home rule local law authority and subjects).
• N.Y. Const. Art. IX § 3(d)(1) (general law definition).
• Highway Law § 139(2) (county-option local law on prior notice of defect).
• Municipal Home Rule Law § 2(5) (general law definition).
• Municipal Home Rule Law § 10(1) (local law power).
• Municipal Home Rule Law § 10(1)(ii)(a)(5) (presentation of claims against the county).
• Municipal Home Rule Law § 22 (designation of state or local laws amended or superseded).
• Johnson v. Etkin, 279 N.Y. 1 (1938) (optional state law is not a general law).
• Town of Smithtown v. Howell, 31 N.Y.2d 365 (1972) (exemption of two counties made state law a special law).
• Holt v. County of Tioga, 56 N.Y.2d 414 (1982) (prior-notice local law upheld as within home rule power).
• Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989) (Municipal Home Rule Law § 22 designation is substantive).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-18_pw.pdf

Original opinion text

Opn. No. 2000-18
N.Y. CONST., ART. IX, §§ 2(b), (c), 3(d)(1); HIGHWAY LAW § 139(2); MUNICIPAL HOME RULE
LAW §§ 2(5), 10(1)(ii)(a)(5).
A county may, pursuant to the Municipal Home Rule Law, enact a local law requiring, as a condition of
a claim against the county, that prior written notice of defects in, or snow and ice on highways, bridges
and sidewalks be given to the county by providing notice to the clerk of the county board of supervisors.
The local law need not be identical to that authorized under section 139(2) of the Highway Law.
August 30, 2000
Richard B. Meyer, Esq.
County Attorney
County of Essex
P. O. Box 217
Elizabethtown, NY 12932

Informal Opinion
No. 2000-18

Dear Mr. Meyer:
You have informed us that your county has enacted a local law under its home rule authority
requiring that prior written notice of defects in, or snow and ice on, county roads, bridges and sidewalks
be given to the county as a condition precedent to a civil action against the county for damage to
property or injuries caused by these defects or conditions. Section 139(2) of the Highway Law
authorizes a county to adopt a local law "provid[ing] that no civil action shall be maintained" against the
county for damages or injuries attributable to such defects or conditions "unless written notice . . . was
actually given to the clerk of the governing body of such county or the county highway superintendent."
Your inquiry is whether the local law enacted under home rule authority may require that notice be
given only to the clerk of the county legislative body, as opposed to the clerk and/or the county highway
superintendent. In our view, the county is authorized to enact such a local law.
Local governments, including counties, are authorized to enact local laws relating to specific
subjects within their authority. These laws are required to be consistent with the Constitution and
general laws. See N.Y. Const., Art. IX, § 2(b), (c); Municipal Home Rule law § 10(1). For purposes of
these provisions, a "general law" is a state "law 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." N.Y. Const.,
Art. IX, § 3(d)(1); Municipal Home Rule Law § 2(5). Therefore, a "general law," in its application to
counties, is a state law which applies in terms and in effect alike to all counties or all counties outside
the City of New York. In addition, only a state law that is required to be and in fact is applied in all
counties qualifies as a general law; a law that applies only to counties that elect to adopt it is not general.
See Johnson v. Etkin, 279 N.Y. 1, 6 (1938).
In our view, because section 139(2) of the Highway Law may be applied at the option of a county,
it is not a general law. See id.; see also Town of Smithtown v. Howell, 31 N.Y. 2d 365, 375-376 (1972)
(exemption from state law of two counties rendered that law a special, not a general law for home rule
purposes). Therefore, if the proposed notice provision is a subject within local law authority, it need not
be consistent with section 139(2) of the Highway Law and may provide that notice be given only to the
clerk of the county legislative body.
Counties are authorized to enact local laws regarding the presentation, ascertainment, disposition
and discharge of claims made against them. See N.Y. Const., Art. IX, § 2(c)(ii)(5); Municipal Home
Rule Law § 10(1)(ii)(a)(5). A local law requiring notice of defect as a condition precedent to a claim
would relate directly to the presentation, disposition and discharge of the claim. See Holt v. County of
Tioga, 56 N.Y.2d 414 (1982) (a local law requiring prior notice of defect was upheld in decision finding
authority for the local law and holding that local law was consistent with earlier version of section 139
of the Highway Law). We believe that this provision of the Municipal Home Rule Law authorizes a
local law requiring notice as a condition of a claim against the county based on defects, snow or ice on
county roads, bridges and sidewalks. We note that any such local law must also comply with section 22
of the Municipal Home Rule Law, which requires the designation of any state or local law it is
amending or superseding. See Kamhi v. Town of Yorktown, 74 N.Y.2d 423 (1989).
We conclude that a county may, pursuant to the Municipal Home Rule Law, enact a local law
requiring, as a condition of a claim against the county, that prior written notice of defects in, or snow
and ice on highways, bridges and sidewalks be given to the county by providing notice to the clerk of
the county board of supervisors. The local law need not be identical to that authorized under section 139
(2) of the Highway Law.
The Attorney General renders formal opinions only to officers and departments of State
government. This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE
Assistant Solicitor General
In Charge of Opinions

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