CLAUDIO v. INCORPORATED VILLAGE OF PATCHOGUE (1997)

Supreme Court, Appellate Division, Second Department, New York.

Deborah A. CLAUDIO, et al., Respondents, v. INCORPORATED VILLAGE OF PATCHOGUE, Appellant.

Decided: January 13, 1997

Before MILLER, J.P., and RITTER, SULLIVAN, FRIEDMANN and KRAUSMAN, JJ.

Certilman, Balin, Adler & Hyman, LLP, East Meadow, (Robert J. Ciovacco, of counsel), for appellant. John F. Clennan, Ronkonkoma, for respondents.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The injured plaintiff alleged that she was injured when she tripped over a tree root and fell on the sidewalk in the Village of Patchogue. The plaintiffs, however, failed to allege compliance with the Village's ordinance requiring prior written notice. In addition, the conduct ascribed to the Village, planting the tree and subsequently failing to prune or uproot it, does not constitute affirmative negligence. Under these circumstances, the Supreme Court should have dismissed the complaint (see, Monteleone v. Incorporated Village of Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459; Parella v. Levin, 111 A.D.2d 750, 489 N.Y.S.2d 780).

MEMORANDUM BY THE COURT.

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