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10 Touro L. Rev. 705 (1993-1994)
Prior Written Notice Statutes in New York State: The Resurrection of Sovereign Immunity

handle is hein.journals/touro10 and id is 713 raw text is: PRIOR WRITTEN NOTICE STATUTES IN NEW YORK STATE: THE RESURRECTION OF SOVEREIGN IMMUNITY INTRODUCTION This article will present the history of governmental and municipal immunity, its apparent waiver, and an attempt to rescind that waiver by way of prior written notice statutes, otherwise known as pothole laws. Prior written notice statutes create conditions precedent to commencement of a negligence action against a municipality. These statutes provide that before a person may begin an action against a municipality or a municipal corporation, for a defect in a roadway or sidewalk which caused injury, the entity must have prior written notice of that defect or the action may not be maintained. 1 It has been argued that through the creation of these statutes, a litigant has virtually lost all opportunity to bring a personal injury action against a municipality.2 As such, these statutes are arguably unconstitutional as they potentially deny the litigant due process of law.3 This comment will focus on how these laws 1. See infra notes 74-76, 78-82 and accompanying text. 2. See Abraham Fuchsberg, Pothole Law Described as Penaly on Victims of Municipal Negligence, 183 N.Y. L.J. 34, col. 1 (May 1, 1980). The author described New York City's prior notice statute as permit[ing the City to absolve itself of negligence. Id. In addition, he argued that it is unrealistic to expect that ordinary citizens would ever provide such notice. Id. Fuchsberg pointed to such practical difficulties as illiteracy in poor neighborhoods, and the fact that ordinary citizens would not know to whom notice should be sent. 1d. As a result, New York citizens would have their right to justice forfeited .... Id. However, shortly after the law went into effect, Fuchsberg founded the Big Apple Pothole and Sidewalk Protection Committee. See Howard Kurtz, The City of Deep Potholes and Deep Pockets, \VASHINGTON POST, April 13, 1988, at A3. By performing the task of finding potholes and dangerous sidewalks, and sending detailed maps of their locations, the Big Apple Pothole Corporation addresses many of the practical problems Fuchsberg detailed. 3. See Fuchsberg, Pothole Law Described as Penalty on Victims of Municipal Negligence, 183 N.Y. L.J. 34, col. 1. This argument, however, has been largely unsuccessful in New York courts. See, e.g., Holt v. County of 705

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