Opinion
March 14, 1994
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Emily Ricciuti alleges that she sustained personal injuries when she fell over an accumulation of concrete which was negligently allowed to remain on the ground after a sidewalk repair project in the area had been completed by the defendant, Acocella Landscaping, Inc. (hereinafter Acocella), an agent of the defendant Village of Tuckahoe. Although prior written notice of this alleged defect was not provided to the Village, the plaintiffs argue that such notice was not required because the Village created the dangerous condition.
To the extent that the alleged defect was present on the sidewalk, we note that "[t]he defendant village has a nondelegable duty to maintain its highways, of which sidewalks are a part (see, Williams v. State of New York, 34 A.D.2d 101, 104; 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)" (Combs v. Incorporated Vil. of Freeport, 139 A.D.2d 688, 689; see also, Kiernan v. Thompson, 73 N.Y.2d 840; D'Ambrosio v City of New York, 55 N.Y.2d 454).
The Village does not deny that it entered into a contract with Acocella for the repair of the area in question, but denies that it or its agents created any defect. Accordingly, the Village moved for summary judgment on the ground that the plaintiffs failed to comply with the condition precedent of prior written notice, as required by both Village of Tuckahoe Law § 6-628 and CPLR 9804.
It is well-settled that "[a]n exception to the prior written notice rule exists when the municipality has caused or created a defect or dangerous condition" (Combs v. Incorporated Vil. of Freeport, 139 A.D.2d 688, 689, supra; see, Kiernan v. Thompson, 73 N.Y.2d 840, supra; Montante v. City of Rochester, 187 A.D.2d 924). In the case at bar, based upon the conflicting testimony adduced at the examinations before trial, we find that there are triable issues of fact regarding the existence of the alleged defect and whether or not the Village was responsible for its creation (see, Combs v. Incorporated Vil. of Freeport, supra, at 689; Schraub v. Town of Hempstead, 167 A.D.2d 458).
Accordingly, the Village's motion for summary judgment based upon the plaintiff's failure to comply with the requirement of prior written notice was properly denied (see, Kiernan v Thompson, supra, at 842). Similarly, the Supreme Court also properly denied so much of the Village's motion which sought dismissal of the cross claims asserted against it by the codefendant, People's Westchester Bank (cf., Londino v. Bank of N Y, 132 A.D.2d 688). Miller, J.P., Copertino, Santucci and Goldstein, JJ., concur.