HomeMy WebLinkAboutSidewalk Defects 1988FEARCIS J. MURPHY
SUPERVISOR
TELEPHONE
(5161 765-1~09
OFFICE OF TIIE SUPERVISOR
~-?~N OF SOUTIIOLD
TOWN HALL, 53095 MAIN ROA0
P.O. BOX 1179
SOUTHOLD, NEW YORK 11971
Mr. William Mullen
Planning Board
Town of So~thold
March 25,1988
RE: Liability of the Town for defects in sidewalks.
Dear Mr. Mullen,
Pursuant to your request of Mr. Schondebare, attached
please find a legal memorandum of the liability of the Town
for defects in sidewalks. There is an actual notice requirement
for sidewalks before liability is imposed under the Town Law.
The Town Code requires actual notice for highway defects.
Because the State's Town Law already has an actual notice req-
uirement for sidewalks, there is no need to add a section to
the Town Code for sidewalks.
I hope this answers your questions. If you have any further
questions, please feel free to contact me.
cc: Southold Town Planning Board
Southold Town Board
RHB:jas
Very truly yours,
Robert H. Berntsson
Assistant Town Attorney
JAMF. S A. SCHONDEBARE
ROBERT H. BERNTSSON
ASS ISTANT TO'~N ATTORNEY
OFFICE OF THE TOWN ATTORNEY
TOWN OF SOUTHOLD
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
TELEPHONE
(516~ 765-1959
TO:
FROM:
DATE:
SUBJECT:
James A. Schondebare, Town Attorney
Robert.H. Berntsson, Assistant Town Attorney
March 22, 1988
LIABILITY FOR INJURIES ON SIDEWALKS
You inquired how liability is imposed on the Town from
injuries resulting from defects in sidewalks. Under Town Law
Section 65-a(2), liability is imposed for injuries from defects
in sidewalks constructed or maintained by the Town or Town
Superintendent of Highways only when actual written notice of
such defect, specifying the particular place, is given to the
Town Clerk or Town Superintendent of Highways and there was
failure or neglect to remedy such defect within a reasonable time
after receipt of such notice.
Chapter 49 of the Southold Town Code supersedes subdivision
1 and 3 of section 65-a of the Town Law. Chapter 49 and Town Law
Section 65-a(1) deal with defects in highways, bridges and
culverts. Chapter 49 does not supersede Section 65-a(2) which
deals with sidewalk defects. Therefore, 65-a(2) controls.
Section 65-a(2~ states:
"No civil action shall be maintained against any town or
town superintendent of highways for damages or injuries to
person or property sustained by reason of any defect in its
sidewalks or in consequence of the existence of snow or ice
upon any of its sidewalks, unless such sidewalks have been
constructed or are maintained by the town or the
superintendent of highways of the town pursuant to statute,
nor shall any action be maintained for damages or injuries
to person or property sustained by reason of such defect or
in consequence of such existence of snow or ice unless
written notice thereof, specifying the particular place,
was actually given to the town clerk or to the town
superintendent of highways, and there was a failure or
neglect to cause such defect to be remedied, such snow or
ice to be removed, or to make the place otherwise '~
reasonably safe within a reasonable time after the receipt
of such notice."
There is no liability on the Town from sidewalks which are
not constructed or maintained by the Town~ There is also an
actual notice requirement for liability. The Town is given a
reasonable time to remedy the defect.
As a related matter, Chapter 49 of the Code requires actual
notice of highway defects. Town Law Section 65-a(1) allows a
cause of action in the absence of actual notice where the ~efect
existed for so long a time that it should have been discovered in
the exercise of reasonable care. "A town may adopt a local !aw
requiring written prior notice of defection and dangerous
conditions on town highways as a prerequisite to the maintenance
of any action against the town for d~mages resulting therefrom."
Op. State Compt. 78-6~.~ See also Canzano v. Town of Gatesy 85
A.D.2d 878 (1981).
FOR DISCUSSION
Bill'Mullen dropped off these local laws from the Town of Hempstead and Village
of Floral Park. He feels our Chapter '49, Notice~cffJ-iighw.a.y Defects, is not strong
enough. He wouM_~like the Board to review the attached and consider amending
our Chapter 49.
FRANCIS J. MURPHY
SUPERVISOR
TELEPHONE
(516) 765-I800
OFFICE OF THE SUPERVISOR
TOWN OF $OUTHOLD
October 8, 1987
TOWN HAL1. 53095 MAIN ROAD
P.O. E~0X 1179
SOUTHOLD, NEW YORK 11971
Mr. Frank Yakaboski
Smith, Finkelstein, Lundberg, Islet & Yakaboski
456 Griffing Avenue
P.O. Box 389
Riverhead, New York 11901
Dear Frank:
As a result of Tuesday's Town Board Meeting (October 6, 1987)
there are several areas that you should be investigating or responding
to. These a~re:
Begin work to set up a Southold Town Garbage District to be
mainland only, excluding all islands - i.e. Fishers, Robins, Plum,
Gull, Little Gull, etc.
Terry Water Association - your opinion is needed
(correspondense enclosed)
Chapter 49, Notice of Highway Defects - William Mullen suggests
that this Chapter is not strong enougb and asks the Town to
consider changes similar to that of Floral Park Village and Hempsread
Town. Please review the attached in respect to our Legislation.
(see attached) ......
4. Meet with the Southold Plarming Board on'Letters of Credit.
Thank you for your prompt attention to these matters.
appreciate a copy of any correspondense in reference to the above list.
CC: Town Board
l~r uly yours,
I would further
'~ ~r FLO.R3LL PARK
.:
L~:al LIw No..___6 ............ ~ __ o~ ~b~ 7e~r L~ 86___.
law to Amend S~ction 57-1 of the ~gde of the Village of Floral Park P~lating t~ '
Be it enacted I~ tbe ................................ .-
~ ,
~ Incorporated Village of Floral
~ ·
valise
........... or t~ '
......... · , follow.:
A
LOCAL LAW TO AMEND SECT/ON 57-1 OF THE CODE
OF THE VILLAGE OF FLORAL PARK RELATING TO
~' NOTICE PRIOR T0 CIVIL ACTION
Section l. Section 57-i'of the Code of the Village of Floral
Park, which by its terms, amends Section 6-628 of the Village law of
the State of New York {formerly Section 341'-a) as it applies to the
Village o~ Floral Park, is hereby amended to read as follows:
§ 57-1. Amendment to Villag~ Law regarding_
liability
Section 6-628 of the Village Law, as added
thereto by Chapter 892 of the Laws of 1972;
as it applies to the Incorporated Village of
.Floral Park, New York, is hereby amended tO
read as follows: ~ '
§ 6-628'Liability of village in certain actions
No civil action shall be brought or main-
tained against the Incorporated Village of
Floral Park. New York, for damages or
injuries ~o person or property ,sustained in
consequence of any street, highway, bridge,
culve.rt, sidewalk, crosswalk, parking field,
park. playground or playground equipment,
swimming or.wading pool or pool equipment,
skatin~ rink. traffic sign or any other pro-
'party owned, operated'or maintained by kh~
Incorporated Village of Floral Park, being
de,acta?e, ou£ o~ repair, unsafe, dangerous
Page
or obstructed, or in consequence of the exis-
tence of snow or ice upon any street, high-
way. bridge, culvert, sidewalk, parking
field, park, playground, traffic signal, or
any other property owned, operated or. main-
_rained by the Incorporated Village of Floral
Park unless written notice of the existence
of such condition, relating to the particular
place, had, prior to the happening o~ the
event causing such damage or injuries to
persons or property, actually been served
upon the Village Clerk, by personal delivery
or by certified or registered mail addressed
to the Village Clerk, and there had been a
failure or neglect on the part o~ the
Incorporated Village of Floral Park to cause
such condition to be corrected or such snow
or ice to be removed, or the p/ace otherwise
made reasonably safe within a reasonable time
after the receipt of such notice. Under no
circumstances shall the Incorporated Village
of Floral Park be liable for' injury or
damages to person or property due to defec-
tive conditions of the a~oresaid Village
property or the existence of ice or snow
thereon in the absence of prior written
notice to the village of the defective
condition causing the said injuries or
damages.
Section 2. The invalidity of any word. section, clause, para-
graph, sentence, part or provision of this Local Law shall not affect
the validity of any other part of this Local Law that can be given
effect without such invalid part or parts.
Section 3. This local
the Secretary of State.
law'shall become effective upon filing with
'[[-xt ,,f la',, should ~ ;dw-a as nrm-,,Pd. 1¼ n,a t~se brackets for r~att~r to be ~li.mi.~ated :latl do not
o[ ........................... > 5..~.e...: :*'~.. .............................................
Local [_a~, No. ' 115 _ f,f lhe year 19 82
Alkalis- for ~he amendment of chapter slx of the code of [he town of
~emps~ead, b~ the insertion therein of new sections six dash two. si~
d&sh three, and six dash four. respectively, regarding liability of the
town of Hempstead.
Be it eaact~t ~,, the ....~oL,~7[~ ~.q.~.~, ............ af the
Section One. Ch__ap~g~i~ of the code:of the town of
lJempstead, as Constituted by local law number one of nineteen
hundres sixty-nine, is hereby amended by the insertion therein
of new seccions six dash twp, six dash three and six_das_h f~ur,
respecti ely.- ollows:'
§6-2. b&ma~es or inSuries due to defective parking
field, beach area, swimming or wading pool
or pool equipment, playground or playground
equipment, skat£ng rink, or park property;
notice to tows req~aired.
No civil action shall be maintained against the
of H~mpstead for damages or injuries to person or property
so, rained by reason of any defective-~arking field[~he~gh area.
(Z,swimminK or ~adi~g pool or ~bl equipment,~playground'or play-
ground equipment Pskating rink~or park property, no matter
w-Fhere s~-tuat~,-"be~n~-~-defe~tiOe, out of reps[fl unsafe; dangerou~
or obstructed, unless written notice of the defective, ~nsafe,
dangerous or obs~%~' c6'nRi-6-i~ o~ the defective parking field.
beach area. swiping or wading pool or pool equipment, playground
or playground equipment, skaging rink or park propercy was
actually served u~n the town clerk ~ there was a failure or
~%!ect w~t~l.g.a reasonable time after che.g~v~g.of__j~e
? {6p~ir o'r['r~move the defect dange~ or ob~[ruction complained
hi'. Under uo circt~:;tances shall the to~m of f[~mp~;tead be liabl~
~n~ {n~urics nr dam,l;~e~ t(~ per,on oc proper~y du~ t~ de[ective
c.udi~ ions ul' t. he aforu-qtkd L'uwn prnperty in the absence of prior
§6-3.
for ini[~i~s o~ damazes Lo p~rqon Or pr,~p~L'Ey :;LLSt':LLn,~d'b'~--~
rudson Of any defec~ In 'L~.; tr.lffLc '.;lgns, ~;[dew:[Lks, w.ttlcways,
gf ~pow or ice upon anf off its"?raff[c signs :.~d~-al~. wai~-
ways. footpaths or bicycle naa~:~avs unless~ said [~af~ic
~al]~s, %.'-t[kways, fot Upa~hs t r b[cy~'16 path'~a,/';
where ~i~ua[~d, have been consKrucL-ed or ace maintoP'ned .by...~he
as ~he supe~inEcn'~'~ of highways), porsuant to ~;ra~u~e, ~,
written notice of said defuc~ causLnK the injurkes or
%~.~ad~lI~Lven Lo the town clerk or town co~i~;~ioner of
highways in accordance with sect[on six dash four hereof, nor
shall any action be maintained for injuries or damages ~o parson
or property sustained by reason of auy defect or in
consequence of the existence of snow or ice unless written
notice thereof, specifying the particular place, location and
condition was actually given lo thc town clerk or to the
co~ission~r of highways, and there was a failure or neglect
cause ~he par%icular defect to be remedied or the snow or ice
to be removed, or to make the place otherwise reasonably safe
within a reasonable time after the reoeip~ of due notice.
§6-4. Hethod of service of due notice.
Service of due notice of any defect described in this
chapter shall be accomplished by personal service or service
by registered or certified mail.
Section 2. This local law shall become effective
immediately upon filing with the secretary of state.
- 2