Fein v. City of Long Beach

123 A.D.2d 662, 507 N.Y.S.2d 33, 1986 N.Y. App. Div. LEXIS 60811

Opinion

In a negligence action to recover damages for personal injuries, the defendant City of Long Beach appeals from a judgment of the Supreme Court, Nassau County (Roberto, J.), dated November 25, 1985, which is in favor of plaintiff and against it, upon a jury verdict, in the principal amount of $110,807. The appeal brings up for review an order of the same court, dated November 4, 1985, which denied the appellant’s motion to dismiss the plaintiff’s complaint.

Ordered that the judgment is reversed, on the law and the facts, without costs or disbursements, the motion is granted, and the complaint is dismissed as against the appellant.

The plaintiff recovered a verdict for damages sustained as a result of an accident which occurred when she fell and hit her wrist against a bent parking meter pole. There was no evidence that the defect was caused by the municipality, and thus, compliance with the prior written notice provision of the Code of City of Long Beach § 256A (1) was an essential element of the plaintiff’s cause of action. Since she failed to either plead or prove compliance with the code’s notice provision, the city’s motion to dismiss the complaint as against it should have been granted (see, Freeman v County of Nassau, 95 AD2d 363). Mollen, P. J., Thompson, Weinstein and Rubin, JJ., concur.