Dahlgren v. County of Nassau

28 Misc. 2d 699, 212 N.Y.S.2d 187, 1961 N.Y. Misc. LEXIS 3349

• Court: New York Supreme Court
• Decided: February 23, 1961
• Status: Published

Opinion

Mabio Pittohi, J.

Motion to dismiss complaint pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice is granted.

The complaint does not allege (1) prior written notice of the allegedly dangerous condition of the sidewalk, or (2) that the defendant City of Glen Cove constructed the sidewalk improperly, or (3) that the defendant City of Glen Cove installed the manhole cover improperly. To plead that the manhole cover may have been improperly placed when the plaintiff allegedly fell on it is not the same as pleading that the manhole cover was improperly or carelessly installed.

In view of the fact that the plaintiffs in their bill of particulars claimed improper installation of the manhole cover by the City of Glen Cove, the plaintiffs will be permitted to serve an amended complaint within 20 days containing an allegation to that effect.

The observation may be made that unless plaintiff can actually prove an injury resulting from improper installation the timo of the court and of counsel should not be wasted in a prolongation of the action. (Ellis v. City of Geneva, 259 App. Div. 502, affd. 288 N. Y. 478 ; Levine v. City of Glen Cove, 111 N. Y. S. 2d 882 ; Feinson v. City of Long Beach, 137 N. Y. S. 2d 98.)