Atkinson v. Village of Ossining

Decision Date27 September 1961
Citation32 Misc.2d 856,222 N.Y.S.2d 501
PartiesRichard F. ATKINSON, Plaintiff, v. VILLAGE OF OSSINING and Frank Becaler, Defendants.
CourtNew York Supreme Court

Warren W. Wells, White Plains, for plaintiff.

Braham, Koehler & Garvin, New York City, for defendants.

FRANK S. McCULLOUGH, Justice.

This is a motion by the defendants to dismiss the complaint pursuant to Rule 106 of the Rules of Civil Practice on the ground that the complaint fails to state facts sufficient to constitute a cause of action.

The complaint alleges that the plaintiff sustained injuries when he stepped upon a manhole cover in the Village of Ossining and that the cover gave way causing the plaintiff to fall into the manhole. The injuries are attributed by the plaintiff to the negligence of the Village of Ossining and its Superintendent of Highways.

The motion to dismiss is based on the conceded lack of written notice to the Village pursuant to Section 341-a of the Village Law of the State of New York and Local Law 1953 No. 1 of the Village of Ossining which provides as follows:

Section 341-a. 'No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructed condition, or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe.'

Local Law 1953 No. 1.

'Section 1. Section three hundred and forty-one-a of the Village Law as added thereto by Chapter six hundred and fifty of the Laws of nineteen hundred and twenty-seven, as it applies to the Village of Ossining, is hereby amended to real as follows:

Section 341-a. Liability of village in certain actions. 'No Civil Action shall be brought or maintained against the Village of Ossining for damages or injuries to person or property sustained in consequence of any street, highway, bridge,...

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3 cases
  • Ocasio v. City of Middletown
    • United States
    • New York Supreme Court — Appellate Division
    • March 6, 1989
    ... ... City of Long Beach, 8 A.D.2d 818, 190 N.Y.S.2d 197; DiLorenzo v. Village of Endicott, 70 Misc.2d 159, 333 N.Y.S.2d 456; Atkinson v. Village of Ossining, 32 Misc.2d 856, ... ...
  • Carr v. Town of North Hempstead
    • United States
    • New York Supreme Court
    • April 27, 1981
    ... ... Inc. Village of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 222 N.E.2d 376; Atkinson v. Ossining, 32 Misc.2d ... ...
  • Smith v. Lambda Alpha Epsilon Fraternity, Inc.
    • United States
    • New York Supreme Court
    • December 16, 1961

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