Legal Memorandum: Municipality's Responsibility for a Defect

Issue: What is a New York municipality’s responsibility for a defect for which they have not received notice?

A New York statute provides that recovery for injuries sustained due to a "sidewalk or crosswalk being out of repair, unsafe, dangerous or obstructed" may be limited.  A city or municipality may, by ordinance, submit to liability only for those injuries that result from conditions for which (1) "written notice of the defective, unsafe, dangerous or obstructed condition . . . was actually given to the city or its specified officer or employee and [(2)] 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."  N.Y. Gen. Mun. Law § 50-g (McKinney Supp. 1997-98).  Although it is not indicated in the facts whether the city involved in the instant case had such a requirement, because it is so widely adopted in New York, it will be presumed to control in this matter.

The City of Niagara Falls brought a motion in Zimmerman v. City of Niagara Falls, 112 A.D.2d 17, 490 N.Y.S.2d 380 (1985), to have the complaint against it dismissed.  The plaintiff in that case had been injured by a sidewalk defect.  The city successfully established the fact that, prior to the injury, it had received no notice of the defect, and the court found that the plaintiff had not contradicted this.  Without evidence of any prior notice, the court held there were no grounds to sustain the plaintiff’s case.  Id., 490 N.Y.S.2d at 380. 

In Waring v. City […]