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Benson v. Town of Hempstead

Supreme Court, Special Term, Nassau County
Dec 10, 1956
4 Misc. 2d 768 (N.Y. Sup. Ct. 1956)

Summary

In Benson v. Town of Hempstead (4 Misc.2d 768) the court held that the purpose of prior notice is to afford a political subdivision a reasonable opportunity to correct a defective, unsafe or dangerous condition of a street which unknown to it, is brought about by agencies beyond its immediate control. It is not intended to absolve the political subdivision from responsibility for its own affirmative, active negligence in creating the condition.

Summary of this case from Randle v. City of Rome

Opinion

December 10, 1956

G. Burchard Smith, County Attorney, for County of Nassau, defendant.

Allinson Gerzof for plaintiff.


Defendant County of Nassau moves to dismiss the complaint because of plaintiff's failure to allege notice to it as required by subdivision e of section 12-4.0 of the Nassau County Administrative Code. The complaint alleges that plaintiff was injured when, walking along the sidewalk she came in contact with a tree which defendants permitted to be an encroachment on said sidewalk.

The aforesaid section of the code requires as a condition to the maintenance of such action, that the road be one laid out, designated, constructed, reconstructed or maintained as a county road, or constructed by the State and maintained by the county, "unless such sidewalk, curb or gutter was constructed by the county". This condition is met by the allegations of the complaint that the defendants had complete ownership, maintenance and control of the road in question (par. "Sixth"). If every fair intendment is given this allegation then one of the alternate conditions has been properly met.

The code imposes a further condition that written notice shall have been given prior to the accident to the commissioner of public works of Nassau County, of any defective, unsafe, dangerous or obstructed condition of such sidewalk. However, the complaint, again according it a broad and liberal interpretation, alleges that the defendant, by its affirmative act, created the hazardous condition, but it knowingly and negligently so designed the sidewalk as to make it dangerous to pedestrians.

The provision of the code is designed to afford the county a reasonable opportunity to correct a defective, unsafe or dangerous condition of a street which unknown to it, is brought about by agencies beyond its immediate control. It is not intended to absolve the county from responsibility for its own affirmative, active negligence in creating the condition. Under such circumstances, written notice is not required to have been given.

The motion to dismiss the complaint is accordingly denied.


Summaries of

Benson v. Town of Hempstead

Supreme Court, Special Term, Nassau County
Dec 10, 1956
4 Misc. 2d 768 (N.Y. Sup. Ct. 1956)

In Benson v. Town of Hempstead (4 Misc.2d 768) the court held that the purpose of prior notice is to afford a political subdivision a reasonable opportunity to correct a defective, unsafe or dangerous condition of a street which unknown to it, is brought about by agencies beyond its immediate control. It is not intended to absolve the political subdivision from responsibility for its own affirmative, active negligence in creating the condition.

Summary of this case from Randle v. City of Rome
Case details for

Benson v. Town of Hempstead

Case Details

Full title:BETTY BENSON, Plaintiff, v. TOWN OF HEMPSTEAD et al., Defendants

Court:Supreme Court, Special Term, Nassau County

Date published: Dec 10, 1956

Citations

4 Misc. 2d 768 (N.Y. Sup. Ct. 1956)
162 N.Y.S.2d 958

Citing Cases

Randle v. City of Rome

" In Benson v. Town of Hempstead ( 4 Misc.2d 768) the court held that the purpose of prior notice is to…