CAPOBIANCO v. Town of North Hempstead, appellant. (2000)

In an action to recover damages for personal injuries, etc., the defendant Town of North Hempstead appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated May 17, 1999, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the Town of North Hempstead, and the action against the remaining defendants is severed.

The plaintiff Anne D. Capobianco tripped on a defective sidewalk which had become raised and cracked due to a system of tree roots growing underneath it.   The Town of North Hempstead repaired the sidewalk in 1988 or 1989.   The plaintiffs submitted an affidavit from an expert stating that the repair had been “inadequate” to prevent recurrence of the dangerous condition.   However, there is no evidence in the record that a dangerous condition existed when the Town completed its repairs.   There is no evidence that the Town received prior written notice of the recurrence of the dangerous condition, as required by Town Code of the Town of North Hempstead § 26-1.   The allegation of a subsequent recurrence of a condition does not abrogate the need for prior written notice (see, Sipourene v. County of Nassau, 266 A.D.2d 450, 698 N.Y.S.2d 705;  Heywood v. City of Buffalo, 18 A.D.2d 770, 235 N.Y.S.2d 196).

MEMORANDUM BY THE COURT.