Giganti v. Town of Hempstead

• Decision Date: 13 October 1992
• Citation: Giganti v. Town of Hempstead, 588 N.Y.S.2d 413, 186 A.D.2d 627 (N.Y. App. Div. 1992)
• Parties: Loretta GIGANTI, Plaintiff-Respondent, v. TOWN OF HEMPSTEAD, et al., Appellants, Giovanni Piccitto, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 413

588 N.Y.S.2d 413

186 A.D.2d 627

Loretta GIGANTI, Plaintiff-Respondent, v. TOWN OF HEMPSTEAD, et al., Appellants Giovanni Piccitto, et al., Defendants-Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 13, 1992.

Rivkin, Radler, Bayh, Hart & Kremer, Uniondale (Edward J. Hart, Evan H. Krinick, and John M. Denby, of counsel), for appellant Town of Hempstead.

Fiedelman & Hoefling, Jericho (Ellen Manning Atwell, Carol A. Moore and Rose Masler, of counsel), for appellant Inc. Village of Rockville Centre.

Charles J. Barnett, Westbury (Audrey S. Einhorn, on the brief), for plaintiff-respondent.

Before ROSENBLATT, J.P., and EIBER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendants the Town of Hempstead and the Incorporated Village of Rockville Centre separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated August 21, 1990, as denied their respective motions for summary judgment dismissing the complaint insofar as it is asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff.

The plaintiff Loretta Giganti commenced this negligence action against the defendants to recover damages for personal injuries she allegedly sustained on September 20, 1985, when she fell as a result of an allegedly defective sidewalk. The municipal defendants, the Town of Hempstead and the Incorporated Village of Rockville Centre, separately moved for summary judgment dismissing the complaint insofar as it is asserted against each of them, on the ground that they had not received prior written notice of the allegedly defective condition of the sidewalk (see, Code of the Town of Hempstead ch. 6-3; Code of the Incorporated Village of Rockville Centre § 341-a; see also, Town Law § 65-a; Village Law § 6-628).

The plaintiff opposed the motions by submitting numerous memoranda and letters exchanged between the appellants which indicated that, between 1983 and 1986, they had entered into two agreements, pursuant to which they improved the drainage system which included the area of the accident and replaced the pavement, curbs, and sidewalk at the location. The plaintiff provided evidence that, on September 9, 1985, the Town submitted specifications to the Village concerning the specific sidewalk which the Town wanted installed at the location where the accident occurred. She also submitted a photograph taken "within days" after her fall, which indicated that the appellants' inspectors had made white markings in the area for "new curbs".

The Supreme Court determined that under the circumstances presented, the prior written notice statutes and ordinances upon which the appellants relied were inapplicable. The court noted that, under the joint municipal improvement project, the Village had replaced certain sidewalks at the request of the Town and that actual physical inspections of the area were made immediately prior to the plaintiff's fall.

We agree with the Supreme Court's determination. Pursuant to Village Law § 6-628 and Town Law § 65-a, and the applicable municipal ordinances, prior written notice is a condition precedent to maintaining an action against a village or a town arising from a sidewalk defect, and it must be pleaded and proved (see, Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 275 N.Y.S.2d 505, 222 N.E.2d 376; Real v. Town of Huntington, 175 A.D.2d 116, 571 N.Y.S.2d 812; Monteleone v. Incorporated Vil. of Floral Park, 143 A.D.2d 647, 532 N.Y.S.2d 874, aff'd 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459). However, failure to comply with the "notice" statute is excused "when a municipality has or should have knowledge of a defective or dangerous condition...