55 A.D.2d 482, Brooks v. City of Binghamton

• Citation: 55 A.D.2d 482, 390 N.Y.S.2d 693
• Party Name: Brooks v. City of Binghamton
• Case Date: January 27, 1977

Page 482

55 A.D.2d 482

390 N.Y.S.2d 693

Robert S. BROOKS, Respondent,

v.

CITY OF BINGHAMTON, Appellant, and

Richard Lewis Webster et al., Defendants.

Supreme Court of New York, Third Department

January 27, 1977.

Patrick J. Raymond, Binghamton (Robert W. Kennedy, Dept. of Law, Binghamton, of counsel), for appellant.

Singer & Singer, Greene (Robert M. Larkin, Greene, of counsel), for respondent.

Before KOREMAN, P.J., and GREENBLOTT, KANE, MAIN and HERLIHY, JJ.

HERLIHY, Justice.

On April 12, 1971 the plaintiff allegedly was caused to fall by an open sidewalk crack which had existed in such condition since at least December 9, 1965. This alleged defect was located about 15 feet westerly of another alleged defective portion of the sidewalk for which a Jeanette Cook had made claim against the defendant city by a notice of claim dated March 8, 1966 and by a complaint dated January 9, 1967. The record contains a memorandum from the Corporation Counsel, dated May 27, 1966, requesting the sidewalk inspector to inspect the condition at 65 Court Street and a reply from the inspector stating that there are 'no hazards in the sidewalk in front of 65 Court Street (Jupiter)'. The request for an inspection states that it is [390 N.Y.S.2d 694] claimed that 'the sidewalk needs repair'. Upon the present record, there can be no doubt but that the City was given ample written notice that the sidewalk in front of the 'Jupiter' store was defective. Further, the record clearly establishes that the particular defect claimed in this case was a part of the condition of the sidewalk in the area referred to in the written memorandum of the Corporation Counsel.

Local Law Number 3 of the Local Laws of 1958, now codified in the Charter of the City of Binghamton, provides in part:

No civil action shall be maintained against the city * * * unless it is made to appear that written notice * * * relating to the particular time and place and condition of such * * * sidewalk * * * was actually given to the commissioner of public works * * *.

The defendant city contends that the record does not contain written notice of any defect given to the Commissioner of Public Works, and further, that what notice was given was inadequate because it did not describe with particularity the defect blamed by the plaintiff.

It is apparent that the record does not contain direct proof that the written notice alleged in this case ever came to the attention...