Sunday, June 5, 2011

Prior Notice Law Not Applicable For Defense

In Giarraffa v. Town of Babylon, 923 N.Y.S.2d 697 (2d Dept. 2011), the plaintiff was allegedly injured when he stepped into what he described as a dirt-covered sinkhole immediately adjacent to the bulkhead for a slip where his boat was moored in Tanner Park, in the Town of Babylon.  The plaintiff sued the Town of Babylon for negligence. 

The defendant Town argued that there was no prior written notice of the defect pursuant to Town Code Section 158-2 and therefore the action must fail.  The Court disagreed with the Town on this point, stating the following: “the Town failed to demonstrate its prima facia entitlement to judgment as a matter of law because it did not show that the area where the plaintiff fell was within the scope of the applicable prior written notice provisions.  Contrary to the Town’s contention, the dirt-covered area providing access to boats moored at the slips within Tanner Park is neither a boardwalk nor other functional equivalent of a sidewalk.”  The Court, however, noted that if Section 158-2 was applicable then the plaintiff would lose because the Town Supervision received such notice rather than the Town Clerk or the Commissioner of the Department of Public Works, who are the only parties would could validly receive such notice under Section 158-2.

Salvatore R. Marino, Esq.

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