Village's Motion Denied as Prior Written Notice Exists

In Bochner v. Town of Monroe, et al (Index No. 8529/14, decided on or around February 8, 2019), a defendant municipality's motion for summary judgment was denied by the Appellate Division, Second Department, as that defendant submitted evidence in support of its motion that demonstrated that it received prior written notice of the subject defective condition.  Particularly, the case arose in August 2013, when the plaintiff was injured in the Village of Kiryas Joel, as she stepped off a curb and into a pothole in the roadway of Carter Lane, thereafter suffering injuries and commencing a lawsuit against entities including the Village of Kiryas Joel.  At some time during the pre-trial litigation process, the defendant Village of Kiryas Joel moved for summary judgment (seeking to dismiss the plaintiff's case) contending that it did not receive the requisite written notice of the subject dangerous condition prior to the date of the plaintiff's incident.

The Supreme Court of Orange County denied the defendant's motion, and the Appellate Division, Second Department affirmed the trial court's decision, holding, among other things, as follows: "In supports of its motion, the Village submitted evidence that itself demonstrated the existence of triable issues of fact as to whether it had received the requisite prior written notice of the alleged defect.  This evidence established that in the weeks before the plaintiff allegedly was injured, an officer designated by the Village Code as a recipient of written notice, the Village Superintended of Public Works, himself drafted two worksheets detailing defects in the roadway of Carter Lane.  Additionally, the Village submitted evidence that the Village Superintendent of Public Works emailed those worksheets to the Village Clerk - the other officer designated under the Village Code as a proper recipient of written notice - weeks before the date on which the plaintiff was allegedly injured...."

The Court also noted that although it was not clear whether the worksheets identified the precise defect that allegedly caused the plaintiff's injuries, the documents still presented a triable issue a fact (thereby warranting a denial of the motion) as, "'A recent prior written notice that does not provide an exact location, but which nevertheless reasonably identifies the area of the purported defect, may give rise to a question of fact for the jury as to the sufficiency of the notice' [citing Massey v. City of Cohoes, 35 AD3d 996; Blanc v. City of Kingston, 68 AD3d 1525; and Delaney v. Town of Islip, 63 AD3d 658]."

Salvatore R. Marino, Esq.