Summary
noting in finding written notice requirement barred action that "plaintiffs' complaint fails to. allege that, the city affirmatively created the dangerous condition of the sidewalk"; no. reference to any delay in raising issue}
Summary of this case from Law v. Rehab. Support Servs.Opinion
September 27, 1988
Appeal from the Supreme Court, Onondaga County, Murphy, J.
Present — Callahan, J.P., Denman, Boomer, Green and Lawton, JJ.
Order unanimously affirmed without costs, in accordance with the following memorandum: We agree that defendant city is entitled to summary judgment dismissing plaintiffs' negligence cause of action but not on the grounds specified by Special Term, to wit, that it was barred by the Statute of Limitations. Plaintiff's injuries resulted when she tripped and fell due to an allegedly defective sidewalk in the City of Syracuse. A notice of claim was timely served within 90 days of the incident, and the summons and complaint were also served within one year and 90 days therefrom. Plaintiffs concede that the city had no prior written notice of the defect, but they contend that none was required as the city created the dangerous condition (see, Muszynski v City of Buffalo, 33 A.D.2d 648, affd on opn below 29 N.Y.2d 810; Hogan v Grand Union Co., 126 A.D.2d 875, 876; Rehfuss v City of Albany, 118 A.D.2d 987; Barrett v City of Buffalo, 96 A.D.2d 709, 710). However, plaintiffs' complaint fails to allege that the city affirmatively created the dangerous condition of the sidewalk. The complaint alleges a cause of action based upon the city's failure to maintain the sidewalk in a reasonably safe condition for pedestrians. A municipality may specify as a necessary condition precedent to bringing a personal injury action that prior written notice of defect be established (Leary v City of Rochester, 115 A.D.2d 260, affd 67 N.Y.2d 866; Krysinski v City of Rochester, 134 A.D.2d 891). Since the city did not have prior written notice of the defect as required by the Syracuse City Charter § 8-115, the city's motion for summary judgment was properly granted.