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CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined an action alleging negligent maintenance of a sewer system should not have been dismissed. The court noted that the written notice requirement (a common prerequisite for municipal liability) applies to defects in roads and sidewalks, etc. and does not apply to subsurface structures:

It is settled that a municipality is under a continuing duty to maintain and repair its sewage and water systems … , and this duty is independent of the duty not to create a dangerous or defective condition … . “[T]he breach of this ongoing duty is the ‘event’ that forms the basis for the claim” for purposes of General Municipal Law § 50-i … . Thus, defendant’s negligence, if any, in failing to maintain or repair its water and/or sewage system constitutes a continuing wrong that gives rise to a new cause of action for each injury that occurred … . Plaintiff’s recoverable damages, however, are limited “‘to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim'” … . 461 Broadway, LLC v Village of Monticello, 2016 NY Slip Op 07905, 3rd Dept 11-23-16

MUNICIPAL LAW (CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED)/NEGLIGENCE (CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED)/SEWER SYSTEMS (CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED)

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