Saturday, May 14, 2011

No Prior Written Notice Causes Reversal

In Vardoulias v. County of Nassau, 923 N.Y.S.2d 577 (2d Dept. 2011), the plaintiff sued the County of Nassau after tripping, falling and sustaining injury on a Nassau County sidewalk.  The plaintiff claimed that a dangerously defective condition on the sidewalk caused the accident and injury.  The plaintiff argued that the County received prior written notice of the defect because the Nassau County Recreation and Parks Department received prior written notice. 

According to the Nassau County Administrative Code, Section 12-4.0[e]: “no civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk ... unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk [is given] ... [and] such written notice shall specify the particular place and nature of such and that ... notice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney.” 

At the completion of the plaintiff’s case the defense moved for judgment as of matter of law in its favor because the County never received notice in accordance with Section 12-4.0(e).  The trial court judge denied the motion, but on appeal the motion was granted by the Appellate Division.  The Appellate Division agreed with the County in that prior written notice to the Parks and Recreation Department was inadequate because it was not in accordance with the Nassau County Administrative Code requirements, which specifically states that the Office of the County Attorney must be given notice.  According to the Court, prior written notice provisions are always strictly construed (see Gorman v. Town of Huntington, 2009 NY Slip Op 02648), and absent prior written notice of a dangerous or defective condition where a written notice statute is in effect a municipality cannot be held liable for injuries (see Amabile v. City of Buffalo, 93 N.Y.2d 471 [1999]). 

Salvatore R. Marino, Esq.

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