Hinch v. Frankel's Fabric Center

Frank A. Gulotta, J.

This is a motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action. The action is one against the Incorporated Village of Garden City to recover damages for personal injuries sustained as a result of plaintiff’s fall over an alleged defective sidewalk. The complaint contains no allegation as to prior written notice as required by section 341-a of the Village Law. This omission is fatal. (MacMullen v. City of Middle-town, 187 N. Y. 37; Shelly v. City of Port Chester, 6 A D 2d 717.)

The plaintiff concedes that she gave no prior written notice but suggests that this complaint should not be dismissed until she has had an opportunity to examine the defendant village before trial to ascertain whether prior written notice may have been given by someone else. Under section 341-a of the Village Law it is sufficient if prior written notice of the defect shall have been given to the village by anyone, not necessarily the plaintiff. Since this information lies wholly within the knowledge of the defendant village, the present motion will be denied to permit the plaintiff an examination before trial to be limited to the question of prior written notice. Such examination should be conducted immediately and shall, in any event, be concluded within three months from the date hereof at which time this motion may be renewed if the facts so warrant. Short-form order signed.