You are here: / / ALTHOUGH THE VILLAGE ENGINEER SENT A LETTER TO THE ABUTTING PROPERTY OWNERS...
, ,

ALTHOUGH THE VILLAGE ENGINEER SENT A LETTER TO THE ABUTTING PROPERTY OWNERS REQUIRING REPAIR OF THE SIDEWALK DEFECT WHERE PLAINTIFF SLIPPED AND FELL, THE MAJORITY CONCLUDED PLAINTIFF DID NOT DEMONSTRATE THE VILLAGE HAD WRITTEN NOTICE OF THE DEFECT; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined the village demonstrated it did not have written notice of the sidewalk defect where plaintiff allegedly slipped and fell. The village code requires that the board of trustees be given written notice of the defect in order to hold the village liable. Here there was a letter from the town engineer to the abutting homeowners notifying them of the sidewalk defect and requiring repair within 30 days. The majority held that letter did not meet the written notice requirements in the code, which must be strictly construed. the dissent disagreed:

Where … a municipality has enacted a prior written notice law, neither actual nor constructive notice of a condition satisfies the prior written notice requirement … . Records generated by other agencies of the Village, outside of the strict construction of Code of the Village of Garden City § 132-2, fail to satisfy the requirements of the relevant prior written notice law … .. On this record, the plaintiffs failed to raise a triable issue of fact as to whether any documents to or from other municipal employees found their way to the Village Board of Trustees so as to cognizably qualify as prior written notice under the terms of the Village Code.

Our learned dissenting colleague concludes that the plaintiffs, through the submission of a letter on the Village’s letterhead dated May 11, 2015, from the Village Engineer to the defendant homeowners, raised a triable issue of fact as to whether the Village Board of Trustees had prior written notice of the alleged sidewalk defects. … The letter … states … that a recent inspection of the sidewalk and/or driveway apron adjacent to the defendant homeowners’ property indicated that concrete was in need of repair or replacement. The letter continues, stating that it was necessary to repair or replace a defective sidewalk and/or driveway apron for safety reasons and to reduce the likelihood of lawsuits against the property owners and the Village. For these reasons … the Village Board of Trustees had adopted a resolution … providing that property owners are required to repair or replace defective or damaged sidewalks and/or driveway aprons fronting their property within 30 days of receiving notice of such defects. Strictly construing the terms of the Village’s prior written notice law, as we must … that letter from the Village Engineer to the defendant homeowners does not constitute the giving of prior written notice to the Village Board of Trustees. … . Kolenda v Incorporated Vil. of Garden City, 2023 NY Slip Op 01783, Second Dept 4-5-23

Practice Point: Here the village code required that written notice of a sidewalk defect be provided to the board of trustees. A letter from the village engineer to the abutting homeowners requiring repair of the defect did not meet the code’s written-notice requirements, which must be strictly construed. Therefore the village cannot be held liable for the slip and fall.

 

You might also like
ALTHOUGH THE COMPLAINANT IDENTIFIED THE DEFENDANT FROM A PHOTO ARRAY IN A PROCEDURE CONDUCTED BY A POLICE OFFICER, THERE WAS NO PROOF OF THE BASIS FOR DEFENDANT’S ARREST BY ANOTHER OFFICER, THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT.
Dismissal for Failure to Show Up at a Conference with the Judge Constituted a Dismissal for Neglect to Prosecute within the Meaning of CPLR 205/2008 Amendment to CPLR 205 Did Not Apply Retroactively
Criteria for Downward Departure in SORA Proceeding Explained
MOTHER’S MOTION TO VACATE A FACT-FINDING OF NEGLECT WITHOUT ADMISSION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT).
FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL.
THE CAR IN WHICH PLAINTIFFS WERE PASSENGERS HAD THE RIGHT OF WAY ON A THROUGH ROAD; WHETHER DEFENDANT’S CAR STOPPED AT THE STOP SIGN BEFORE PULLING OUT INTO THE PATH OF PLAINTIFFS’ CAR WAS NOT DISPOSITIVE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF FAILED TO SHOW UP FOR THE SETTLEMENT CONFERENCE IN THIS FORECLOSURE... PLAINTIFFS OBTAINED A NEW JERSEY DEFAULT JUDGMENT IN A BREACH OF CONTRACT ACTION...