Healy v. City of Tonawanda

234 A.D.2d 982, 651 N.Y.S.2d 819, 1996 N.Y. App. Div. LEXIS 13742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1996
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court should have granted defendant’s motion and dismissed the complaint. Plaintiff alleged that she was injured when she stepped in a pothole in a parking lot owned by the City of Tonawanda (City). She alleged that her injuries resulted from the negligence of the City in failing to maintain the parking lot and to repair the pothole, which constituted a dangerous or defective condition on its property.

Title XVI, § 5 of the City of Tonawanda Charter mandates that, as a condition precedent to the commencement of a civil action against the City arising from injuries sustained on its highways or public places, the City must have received prior written notice of the condition that caused the injuries. Plaintiff failed to allege that the City had prior written notice of the alleged dangerous or defective condition in the parking lot, and the City submitted proof that it did not. Thus, the complaint must be dismissed (see, Deans v City of Buffalo, 181 AD2d 1015; Stratton v City of Beacon, 91 AD2d 1018; see also, Miller v City of Troy, 224 AD2d 887). Furthermore, plaintiff failed to submit evidence raising sufficient facts to bring this case within an established exception to the prior written notice requirement (see, Kelly v City of New York, 172 AD2d 350, 352; cf., Kiernan v Thompson, 73 NY2d 840). (Appeal from Order of Supreme Court, Erie County, Burns, J.—Dismiss Complaint.) Present—Green, J. P., Lawton, Fallon, Callahan and Boehm, JJ.