Jensen v. City of Tonawanda

206 A.D.2d 918, 616 N.Y.S.2d 314, 1994 N.Y. App. Div. LEXIS 7855

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of the City of Tonawanda (City) for summary judgment on those portions of the amended complaint that alleged liability on the ground of failure to maintain or repair the sidewalk. A written "Record of Complaint” prepared by a municipal employee and filed in the proper office may constitute prior written notice of a defect (see, Brooks v City of Binghamton, 55 AD2d 482). A factual issue exists, however, whether the condition observed by the City’s Superintendent of Public Works, who reported the condition to the employee who wrote the "Record of Complaint”, is the same condition that allegedly caused plaintiff Loraine Jensen’s accident and injury. (Appeal from Order of Supreme Court, Erie County, Cosgrove, J.—Summary Judgment.) Present—Balio, J. P., Lawton, Callahan, Doerr and Boehm, JJ.