HUMES v. TOWN OF HEMPSTEAD

Ordered that the order is affirmed, with costs.

Although the plaintiff's complaint did not plead that the town had received prior written notice of the defect in the playground where he was injured, in accordance with the Town of Hempstead Code § 6-4, nevertheless the plaintiff did allege that the town had affirmatively created the defective condition, thus obviating the need for pleading or proving written notice (see, Haviland v Smith, 91 A.D.2d 764), and, under the circumstances, raising an issue of fact best resolved by a trial of the action. Thompson, J.P., Brown, Balletta, Miller and O'Brien, JJ., concur.