Kofod v. Town of East Hampton

In an action to recover damages for personal injuries, the defendant appeals from an order of the [590] Supreme Court, Suffolk County (Floyd, J.), dated September 18,1995, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). Ordered that the order is affirmed, without costs or disbursements. We agree with the defendant’s contentions that Town Law § 65-a (1) applies to this case because a public parking lot is a highway within the meaning of the statute (see, Stratton v City of Beacon, 91 AD2d 1018, 1019; see also, Zigman v Town of Hempstead, 120 AD2d 520), and that prior written notice of the allegedly defective condition was therefore a condition precedent to maintaining this action (see, Town Law § 65-a [1]) absent proof that the defendant created the condition. However, the plaintiff’s amended verified complaint sufficiently alleges the existence of such prior written notice. The plaintiff also alleges that the defendant affirmatively created the defective condition which caused her injuries (see, Humes v Town of Hempstead, 166 AD2d 503, 504). Accordingly, the Supreme Court properly denied the defendant’s motion to dismiss the complaint. O’Brien, J. P., Ritter, Pizzuto and Altman, JJ., concur.