DAVID OTIS FULLER JR.
Judy D'Annunzio, Plaintiff pro se. Morris Duffy Alonso & Faley, for defendant.
DAVID OTIS FULLER JR., J.
The plaintiff has brought this small claims action for damage to her car, allegedly from a defective manhole cover, at the intersection of Midland Avenue and Winter Hill Road. The defendant has moved to dismiss the action on the ground that the defendant village had not received prior notice pursuant to Section 6–628 of the Village Law which reads as follows:
No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe.
There is no claim that the defendant received actual notice.
The motion must be denied with leave to renew after a hearing because exceptions to the statute have not been accounted for, namely; if other law provides that constructive notice is sufficient and whether there was such constructive notice; Phillips v. County of Nassau, 50 A.D.3d 755, 756–7, 856 N.Y.S.2d 172 (2d Dept 2008); if the alleged defect in the manhole cover was created by the defendant, Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 (2008); see also, Sam Marco v. Village/Town of Mount Kisco, ––– NY3d –––– (N.Y.LJ, Dec 17, 2010); or if the manhole cover conveyed a special benefit to the Village, Aboler v. City of New York, 8 N.Y.3d 888, 889–90, 832 N.Y.S.2d 871, 864 N.E.2d 1270 (2007), such as access to storm sewer drains under the street. Ocasio v. Middletown, 148 A.D.2d 431, 432, 538 N.Y.S.2d 586 (2nd Dept 1989). Whether these exceptions apply is a question for the trier of fact. Ortiz v. City of New York, 67 A.D.3d, 21, 29–30, 884 N.Y.S.2d 417 (1st Dept 2009), order reversed on ground that no triable issue of fact existed,14 N.Y.3d 779, 780, 898 N.Y.S.2d 544, 925 N.E.2d 582 (2010).
Accordingly, the motion is denied and the matter set down for a hearing of these issues at the return date of the motion on January 6, 2011, or on such other date as agreed to by the parties, with leave to the defendant to renew its motion at the end of the hearing.