Monteleone v. Incorporated Village of Floral Park
| Decision Date | 03 October 1988 |
| Citation | 532 N.Y.S.2d 874,143 A.D.2d 647 |
| Parties | Thomas J. MONTELEONE, etc., et al., Respondents, v. INCORPORATED VILLAGE OF FLORAL PARK, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Ayers & Thompson, New York City (Mark S. Moroknek, of counsel), for appellant.
Kelner & Kelner, New York City (Robert S. Kelner, Joseph Kelner and David S. Wilde, of counsel), for respondents.
Before KOOPER, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., the Incorporated Village of Floral Park appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Morrison, J.), entered August 10, 1987, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed as against the defendant Village of Floral Park.
The plaintiffs seek damages for injuries sustained by the infant plaintiff when his cousin brushed aside, and then released, a low-hanging tree branch which snapped back and struck the infant plaintiff in the eye as he was walking on a sidewalk located in the defendant Village of Floral Park. By notice of motion dated February 25, 1987, the defendant village moved for summary judgment dismissing the complaint on the ground that it had not received notice of the alleged sidewalk obstruction prior to the occurrence of the accident, as mandated by Code of the Village of Floral Park § 57-1 (). That section states, in pertinent part, that "no civil action shall be brought or maintained against the Incorporated Village of Floral Park, New York, for damages or injuries to person or property sustained in consequence of any * * * sidewalk * * * being defective, out of repair, unsafe, dangerous or obstructed * * * unless written notice of the existence of such condition" shall have been served on the village clerk prior to the happening of the event causing damage or injury. In denying the appellant's motion, the court determined that the absence of notice was not a bar to the maintenance of suit, stating, "the allegation that the [village] planted and maintained the tree involved is sufficient to preclude summary determination". We disagree.
Since no prior written notice of the defect had been given, it...
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...the roots of the tree or trees, would at most constitute nonfeasance, not affirmative negligence ( see Monteleone v. Incorporated Village of Floral Park, 143 A.D.2d 647, 532 N.Y.S.2d 874,affd. 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459;Lowenthal v. Theodore H. Heidrich Realty Corp., 30......
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...nonfeasance for which there can be no liability absent prior written notice of the condition (see, Monteleone v. Incorporated Vil. of Floral Park, 143 A.D.2d 647, 648-649, 532 N.Y.S.2d 874, aff'd 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459; Michela v. County of Nassau, 176 A.D.2d 707, 5......
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