Levin v. Fred Gary, Inc.

New York Supreme Court

Levin v. Fred Gary, Inc.

32 Misc. 2d 94, 221 N.Y.S.2d 400, 1961 N.Y. Misc. LEXIS 2178

CourtNew York Supreme Court

DecidedOctober 25, 1961

StatusPublished

Cited by1 cases

This text of 32 Misc. 2d 94 (Levin v. Fred Gary, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levin v. Fred Gary, Inc., 32 Misc. 2d 94, 221 N.Y.S.2d 400, 1961 N.Y. Misc. LEXIS 2178 (N.Y. Super. Ct. 1961).

Pincite

Opinion

Mario Pittoni, J.

Motion for an order dismissing the complaint pursuant to subdivision 4 of rule 106 of the Eules of Civil Practice is denied.

On this motion to dismiss the complaint for legal insufficiency, the facts alleged must be deemed true. Paragraph 10 of the complaint states “ That the defendants * * * caused and permitted ice and snow to be * * * carelessly swept and allowed to remain and accumulate in a rough, irregular and uneven manner on the * * * sidewalk”. (Italics supplied.) This is an allegation of the creation of the condition by an affirmative act, and dispenses with the necessity of pleading the giving of written notice of the defective condition to the village. The notice provisions contained in section 341-a of the Village Law do not apply where the municipality creates the condition (cf. Calkins v. City of Plattsburgh, 11 A D 2d 153; Anderson v. Trustees of Inc. Vil. of Mineola, 23 Misc 2d 260).

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Mario Pittoni, J.

Motion for an order dismissing the complaint pursuant to subdivision 4 of rule 106 of the Eules of Civil Practice is denied.

On this motion to dismiss the complaint for legal insufficiency, the facts alleged must be deemed true. Paragraph 10 of the complaint states “ That the defendants * * * caused and permitted ice and snow to be * * * carelessly swept and allowed to remain and accumulate in a rough, irregular and uneven manner on the * * * sidewalk”. (Italics supplied.) This is an allegation of the creation of the condition by an affirmative act, and dispenses with the necessity of pleading the giving of written notice of the defective condition to the village. The notice provisions contained in section 341-a of the Village Law do not apply where the municipality creates the condition (cf. Calkins v. City of Plattsburgh, 11 A D 2d 153; Anderson v. Trustees of Inc. Vil. of Mineola, 23 Misc 2d 260).

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Bluebook (online)

32 Misc. 2d 94, 221 N.Y.S.2d 400, 1961 N.Y. Misc. LEXIS 2178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levin-v-fred-gary-inc-nysupct-1961.

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