Liebow v. Town of Hempstead

167 A.D.2d 378, 561 N.Y.S.2d 606, 1990 N.Y. App. Div. LEXIS 13635

Opinion

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Collins, J.), dated June 19, 1989, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

This action to recover damages resulting from the plaintiff Ernest Liebow’s fall on a golf course owned and operated by the defendant Town of Hempstead was dismissed as barred by the Town of Hempstead Code § 6-2, which requires, inter alia, prior written notification of any defective condition on "park property”. Town of Hempstead Code § 78-1 provides that the term "park” includes golf courses. Therefore, since a golf course comes within the purview of Town of Hempstead Code § 6-2, it was incumbent upon the plaintiffs to plead and prove that prior written notice had been given to the town (see, Goldston v Town of Babylon, 145 AD2d 534). No such written notice was given and there is insufficient evidence of affirmative acts of negligence so as to create a triable issue of fact. Thus, the complaint was properly dismissed (see, Zuckerman v City of New York, 49 NY2d 557, 562; Abbatecola v Town of Islip, 97 AD2d 780). Bracken, J. P., Kunzeman, Kooper and Balletta, JJ., concur.