Humes v. Town of Hempstead

166 A.D.2d 503, 560 N.Y.S.2d 785, 1990 N.Y. App. Div. LEXIS 12577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1990
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Town of Hempstead appeals from an order of the Supreme Court, Nassau County (Roberto, J.), dated May 17, 1989, which denied its motion for summary judgment dismissing the complaint as asserted against it.

Ordered that the order is affirmed, with costs.

Although the plaintiffs complaint did not plead that the town had received prior written notice of the defect in the playground where he was injured, in accordance with the Town of Hempstead Code § 6-4, nevertheless the plaintiff did allege that the town had affirmatively created the defective condition, thus obviating the need for pleading or proving written notice (see, Haviland v Smith, 91 AD2d 764), and, under the circumstances, raising an issue of fact best resolved by a trial of the action. Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.