Leary v. City of Rochester

115 A.D.2d 260, 496 N.Y.S.2d 169, 1985 N.Y. App. Div. LEXIS 54516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1985
• Status: Published

Opinions

Order affirmed, without costs. Memorandum: Plaintiff appeals from an order granting summary judgment to defendant in this personal injury action, on the ground that plaintiff failed to comply with the prior written notice provision set forth . in Rochester City Charter § 7a-13. Plaintiff contends that prior written notice of a defective condition of the sidewalk on property adjacent to the area in which she fell satisfies the notice requirement. We disagree. Unlike the circumstances in Brooks v City of Binghamton (55 AD2d 482, 483), relied upon by plaintiff, the defect causing plaintiff’s injury was isolated from, and not, therefore, "a part of the condition of the sidewalk” in the area complained of in the prior notice. Although prior notice provisions are to be strictly construed against the city (see, Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Barrett v City of Buffalo, 96 AD2d 709, 710), in our view there was no compliance with the notice provision of the Rochester City Charter (see, Holt v County of Tioga, 95 AD2d 934, mot to dismiss appeal granted 60 NY2d 701).

All concur, except Dillon, P. J. and Doerr, J., who dissent and vote to reverse the order and deny the motion, in the following memorandum.