Doremus v. Incorporated Village of Lynbrook

• Decision Date: 22 November 1966
• Citation: Doremus v. Incorporated Village of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 222 N.E.2d 376 (N.Y. 1966)
• Parties: , 222 N.E.2d 376 Florence DOREMUS, Appellant, v. INCORPORATED VILLAGE OF LYNBROOK, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 505

275 N.Y.S.2d 505

18 N.Y.2d 362, 222 N.E.2d 376

Florence DOREMUS, Appellant, v.INCORPORATED VILLAGE OF LYNBROOK, Respondent, et al., Defendants.

Court of Appeals of New York.

Nov. 22, 1966.

Ralph Berley and Benjamin S. Blair, Massapequa, for appellant.

Patrick F. Adams and Joel P. Stolowitz, Mineola, for respondent.

DESMOND, Chief Judge.

Section 341--a of the Village Law,Consol.Laws, c. 64 in effect since 1927 reads as follows: '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 the 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.'

The complaint in this personal injury negligence action which (with two dissents in the Appellate Division) has been dismissed as to defendant-respondentVillage of Lynbrook alleges that the plaintiff, a passenger in an automobile, was injured when that automobile collided with another.The complaint named both automobile owners as codefendants with the village.The charge against the village is in this one sentence: 'That the negligence of the defendant, The Incorporated Village of Lynbrook, consisted of failing to keep in good working order and failing to repair a stop sign on the southeast corner of Walnut Street and Earle Avenue in the aforesaid Incorporated Village of Lynbrook.'Special Term and the Appellate Division held that this allegation failed to state a cause of action against the village since there was no statement in the complaint that the prior written notice required by section 341--a was given.(Compliance with the $341--a requirement, when applicable, must be alleged in the complaint--seeMacMullen v. City of Middletown, 187 N.Y. 37, 79 N.E. 863, 11 L.R.A.,N.S., 391.)

The majority memorandum at the Appellate Division held that section 341--a covered the situation of a defective warning sign because, so the majority wrote: 'There can be little doubt that a failure to maintain a proper warning sign renders a highway defective, unsafe and dangerous'.The majority cited Canepa v. State of New York, 306 N.Y. 272, 117 N.E.2d 550, but that decision did not deal with section 341--a.It was merely a holding that under certain circumstances a failure to give timely warning by signs may render liable in negligence...