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The Town’s Actual or Constructive Notice of a Sidewalk Defect Does Not Obviate the Written Notice Requirement

The Second Department determined summary judgment was properly awarded to the town (re: an allegedly defective sidewalk where plaintiff fell) because the “written notice manually transcribed by the complainant” requirement was not met. The fact that there existed writings and email generated by the town concerning the defect, and the fact that the town may have had constructive or actual notice of the defect, did not obviate the written notice requirement:

“A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies” … . ” The only two recognized exceptions to a prior written notice requirement are the municipality’s affirmative creation of a defect or where the defect is created by the municipality’s special use of the property'” … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … . Here, the Town has adopted a prior written notice law stating that written notices must be “manually subscribed by the complainant” and submitted to the Town Superintendent of Highways or the Town Clerk (Code of the Town of North Hempstead § 26-1). Wolin v Town of N. Hempstead, 2015 NY Slip Op 04846,, 2nd Dept 6-9-15

 

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