Rizzo v. Town of Hempstead

Mario Pittoni, J. Motion by defendant, County of Nassau, to dismiss the complaint, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, is granted. On this motion the facts alleged are deemed true. Paragraph 8 of the complaint states 11 that the said occurrence was due to the carelessness and negligence of the defendants in causing, permitting and allowing the said sidewalk to be, become and remain in a broken, cracked, dangerous, defective, raised and elevated condition ’ ’. This is not an allegation of the [975] creation of the condition by an affirmative act. Introducing, among many other verbs, the abstract and vague word “ cause ” or “ causing,” with nothing more, is not enough to satisfy the requirement of the Nassau County Administrative Code (§ 12-4.0, subd. e; L. 1939, ch. 272, as amd. by L. 1946, ch. 992, § 5), which reads as follows: “ e. No civil action shall be maintained against the county for damages or injuries to person or property sustained by reason of any sidewalk, curb or gutter located on a county road outside of incorporated villages and cities being defective, out of repair, unsafe, dangerous, or obstructed * * * unless such sidewalk, curb or gutter was constructed by the county or by the state or under a permit issued by the county or by the state, and unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk * * * was actually given to the commissioner of public works and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of 5 * 5 or to make the place otherwise reasonably safe. Such written notice shall specify the particuluar place and nature of such defective, unsafe, dangerous or obstructed condition” (emphasis supplied). If the plaintiff had pleaded a specific and concrete affirmative act which caused the broken sidewalk and hole thereon, pleading the prior written notice would not be required (Calkins v. City of Plattsburgh, 11 A D 2d 153; Anderson v. Trustees of Inc. Vil. of Mineola, 23 Misc 2d 260). Motion is granted and the complaint is dismissed, with leave to serve an amended complaint within 10 days after service of a copy of the order to be entered herein.