Parella v. Levin
| Decision Date | 03 June 1985 |
| Parties | Rose PARELLA, et al., Plaintiffs, v. Maurice LEVIN, et al., Appellants, Village of Hempstead, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Kelly & Hatter, West Hempstead (John F. Clennan, Centereach, and James M. McLaughlin, Jr., New York City, of counsel), for appellants.
Rivkin, Leff, Sherman & Radler, Garden City (Frank L. Amoroso and Gary D. Centola, Garden City, of counsel), for respondent Village of Hempstead.
Edward G. McCabe, Co. Atty., Mineola (Robert O. Boyhan, Mineola, of counsel), for respondent County of Nassau.
Before MOLLEN, P.J., and NIEHOFF, RUBIN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendants Levin appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County, dated March 23, 1984, as granted defendant County of Nassau's motion and defendant Village of Hempstead's cross motion for summary judgment to the extent of dismissing the cross claim against them.
Order affirmed insofar as appealed from, with one bill of costs.
Admittedly, neither the county nor village received prior written notice of the alleged defective condition. Absent such notice, a municipality is liable only for affirmative negligence (see Nassau County Administrative Code § 12-4.0 L.1939, ch. 272, L.1946, ch. 992; Village Law § 6-628; CPLR 9804; Drzewiecki v. City of Buffalo, 51 A.D.2d 870, 380 N.Y.S.2d 151; D'Imperio v. Village of Sidney, 14 A.D.2d 647, 218 N.Y.S.2d 165, affd. 12 N.Y.2d 927, 238 N.Y.S.2d 314, 188 N.E.2d 528). There is no evidence that either the village or county caused the deterioration of the curb along the apron of the Levin driveway or negligently repaired such curb. The conduct for which the defendants Levin seek to impose liability upon the village and county is for nonfeasance, i.e., the failure to repair a deteriorated condition, and not for a condition either of said municipalities caused or created.
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