SCHMALENBERGER v. TOWN OF BROOKHAVEN

Order of the Supreme Court, Suffolk County, dated April 13, 1966, reversed, with $20 costs and disbursements, and motion to dismiss the complaint denied. This is a negligence action against a town arising out of an alleged fall in a roadway in the hamlet of Centereach, Town of Brookhaven. The motion to dismiss and the order granting dismissal are erroneously premised on section 341-a of the Village Law, which is not applicable. The comparable Town Law provision is subdivision 1 of section 65-a, formerly section 215 High. of the Highway Law, and it differs from its Village Law counterpart in that actual notice or constructive notice is a sufficient condition precedent to a suit against a town with respect to a "defective, out of repair, unsafe, dangerous or obstructed" condition in "any highway, bridge or culvert". It must be noted that we are not construing those portions of subdivisions 1 and 2 of section 65-a dealing with snow and ice on a highway or with sidewalk conditions. Giving this complaint a fair and liberal reading as we must (CPLR 3026), we find a sufficient allegation of constructive notice which saves the complaint from attack on the ground asserted. Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.