New York Injury against Town Requires Notice

Personal Injury and Accident attorneys know that New York state requires notice of a dangerous condition in some cases before a personal injury law suit may be brought against a town, village or municipal entity.

Often land and property owners have a duty to warn of a dangerous condition that may cause an injury. Municipalities have these duties to persons with exceptions. Injury attorneys know that causation and the failure to warn about a hazardous condition may be difficult to prove. In some cases, the injured party cannot succeed because there was no notice to the municipality before the injury occurred.

In the Town of Chester, the injured party, the plaintiff, alleges that the "Town installed a metal culvert pipe with 'razor sharp' edges, failed to furnish any warnings concerning the hazards of contact with the culvert or pipe and maintained such a hazardous condition when the Town knew, or should have known, of the hazard." The town denies and asks that the court not hear this injury case, asking for summary judgment against the injured party as a matter of law.

Cases against municipalities, towns, villages and other governmental entities require strict time deadlines, have special notice requirements and may, as in this case, require compliance with local law. See Soffey v. Town of Chester, 2020 N.Y. Slip Op 51029 (NY: Supreme Court, Warren 2020) (citing Town Law § 65-a for the premise that "an action for personal injuries against a town due to an alleged defective, unsafe or dangerous condition of a culvert may not be maintained unless written notice of such alleged condition was actually given to the town clerk or town superintendent of highways.") The facts in this case are as follows:

Plaintiff had been fishing with friends on Bird Pond, a privately owned water body. Plaintiff was in a canoe with one of his friends and his dog. When the friend and dog jumped out of the canoe, the canoe tipped, plaintiff fell out of the canoe and his right leg struck the end of the culvert pipe, causing a laceration to his lower right leg. Plaintiff was familiar with the area of the culvert, having used the area on numerous occasions to access Bird Pond. Plaintiff had launched his canoe next to the culvert pipe and had returned to the same location to exit the water with the canoe.

Among other things, the town contests responsibility for the injury on a legal grounds, that General Obligations Law § 9-103, shields a property owner or occupant from liability for ordinary negligence where members of the public are permitted to enter the property to engage in certain recreational activities. The legal standard for summary judgment is recited by the court:

"It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Once the movant makes the proper showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. The facts must be viewed in the light most favorable to the non-moving party. However, bald, conclusory assertions or speculation and a shadowy semblance of an issue are insufficient to defeat summary judgment, as are merely conclusory claims."

Stonehill Capital Mgt., LLC v Bank of the W., 28 NY3d 439, 448 [2016] [internal brackets, quotation marks and citations omitted].)

The Town of Chester Court rules against the injured party. It reasons that "Assuming, arguendo, the Town is not afforded immunity under General Obligations Law § 9-103, the Town has adequately established it did not receive the requisite notice under Town Law § 65-a, and plaintiffs have failed to establish that any exception to the rule applies." Before bringing an injury case in New York against a municipal agency, even Florida or other jurisdictions, one must be sure that s/he complies with the prerequisites.

The case is Soffey v. Town of Chester, 2020 N.Y. Slip Op 51029 (NY: Supreme Court, Warren 2020)..

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