Levin v. Fred Gary, Inc.

• Decision Date: 25 October 1961
• Citation: 32 Misc.2d 94,221 N.Y.S.2d 400
• Parties: Irene LEVIN and Herman Levin, Plaintiffs, v. FRED GARY, INC. d/b/a Associated Super Market, Lo Presti Realty Corp. and Incorporated Village of Great Neck Plaza, Defendants.
• Court: New York Supreme Court

Page 400

221 N.Y.S.2d 400

32 Misc.2d 94

Irene LEVIN and Herman Levin, Plaintiffs, v. FRED GARY, INC. d/b/a Associated Super Market, Lo Presti Realty Corp. and Incorporated Village of Great Neck Plaza, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Oct. 25, 1961.

Sol Zepnick, New York City, for plaintiffs.

Jerome Scharoff, Mineola, for defendant, Incorporated Village of Great Neck Plaza.

MARIO PITTONI, Justice.

Motion for an order dismissing the complaint pursuant to Rule 106, subd. 4, is denied.

On this motion to dismiss the complaint for legal insufficiency, the facts alleged must be deemed true. Paragraph 10 of the complaint states 'That the defendants * * * caused and permitted ice and snow to be * * * carelessly swept and allowed to remain and accumulate in a rough, irregular and uneven manner on the * * * sidewalk * * *.' This is an allegation of the creation of the condition by an affirmative act, and dispenses with the necessity of pleading the giving of written notice of the defective condition to the village. The notice provisions contained in section 341-a of the Village Law do not apply where the municipality creates the condition (cf. Calkins v. City of Plattsburgh, 11 A.D.2d 153, 204 N.Y.S.2d 453; Anderson v. Trustees of Incorporated Village of Mineola, 23 Misc.2d 260, 201 N.Y.S.2d 131).