Opinion
April 25, 1988
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is affirmed, with costs.
The court properly denied the defendant's motion for summary judgment dismissing the plaintiffs' action to recover damages caused by an allegedly defective condition in a sidewalk, on the ground that the Village Clerk had not received prior written notice of this condition as required by CPLR 9804, Village Law § 6-628 and Code of Ordinances of the Village of Freeport § 27-2. The admissions by the Assistant Superintendent of the Department of Public Works that the defendant village retained an independent contractor to construct the sidewalk and catch basin at issue as part of street improvements on South Long Beach Avenue combined with the plaintiffs' detailed descriptions, based on personal observations, of the condition of the situs of the accident at the time of its construction and at the time of the accident, suffice to create a triable issue of fact as to whether or not the defendant village was liable for the creation of a dangerous defect in the sidewalk (cf., Zigman v. Town of Hempstead, 120 A.D.2d 520). An exception to the prior written notice rule exists when the municipality has caused or created a defect or dangerous condition (see, Freeman v. County of Nassau, 95 A.D.2d 363).
Since the defendant admits the subject sidewalk was constructed as part of a street improvement on Long Beach Avenue, it cannot avoid liability for the allegedly dangerous condition of the sidewalk on the ground that it was caused by an independent contractor. The defendant village has a non-delegable duty to maintain its highways, of which sidewalks are a part (see, Williams v. State of New York, 34 A.D.2d 101, 104; see generally, 64 N.Y. Jur 2d, Highways, Streets, and Bridges, §§ 1, 6), in a reasonably safe condition (see, Lopes v. Rostad, 45 N.Y.2d 617, 623; Blais v. St. Mary's of Assumption R.C. Church, 89 A.D.2d 653; see generally, 65 N.Y. Jur 2d, Highways, Streets, and Bridges, § 411).
Lastly, questions of credibility on a motion for summary judgment should not be determined by the court (Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338; Zulferino v. State Farm Auto. Ins. Co., 123 A.D.2d 432). Here, the credibility of the plaintiffs' recollections with regard to the condition of the accident site at the time of the construction of the subject sidewalk and catch basin in 1961 was an issue properly reserved for the trier of facts. Kunzeman, J.P., Rubin, Eiber and Sullivan, JJ., concur.