Schneider v Village of Great Neck Estates

[*1] Schneider v Village of Great Neck Estates 2004 NY Slip Op 51605(U) Decided on December 6, 2004 District Court, Nassau County Pardes, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 6, 2004
District Court, Nassau County

Charles Schneider, Plaintiff(s)

against

Village of Great Neck Estates, Defendant(s)



SC123/04



Charles Schneider, plaintiff pro se.

Meyer, Suozzi, English & Klein, P,C., for defendant.

Sondra K. Pardes, J.

This Small Claims action was scheduled for trial on June 24, 2004. The defendant, Village of Great Neck Estates, moved in open court for an order dismissing the complaint on the grounds that the plaintiff failed to serve notice pursuant to the relevant Village Laws.

The Court directed that the parties submit Memoranda of Law with respect to these issues.

Upon reviewing the memoranda submitted by both parties the court denies defendant's motion for the following reasons.

The plaintiff in this Small Claims Action seeks to recover the cost of damages to his automobile based on his claim that the municipality located parking meters "beyond the usual, normal customary position or location of the Village's other municipal meter". In addition he asserts that there are "no markings or illuminations at night" to alert motorists that these meters exist at an unusual location.

The defendant moves to dismiss on several grounds. First, the municipality asserts that plaintiff failed to demonstrate that the Village had "prior written notice" that the parking lot in question was "defective, out of repair, unsafe, dangerous or [*2]obstructed". However, in the instant case the plaintiff is claiming that the Village created a dangerous condition by placing parking meters, in the parking spots

INDEX NO: SC123/04

SCHNEIDER v VILLAGE OF GREAT NECK ESTATES

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designated for handicapped persons, in a position and location that created a dangerous condition. It is well established that "(n)o prior written notice is required where the locality created the difficulty through an affirmative act of negligence". (see, Mayer v Town of Brookhaven, 266 Ad2d 360, 361 [2nd Dept., 1999]).

Secondly, the defendant points out that CPLR 9801(1) requires a notice of claim to be made and served as a condition precedent to an action against the a village. It provides:

No action shall be maintained against the village for a personal injury or injury to property alleged to have been sustained by reason of the negligence or wrongful act of the village or of any officer, agent or employee thereof, unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law.

The defendant concedes that the plaintiff's October 28, 2003 letter describing the nature of his claim, was timely served. However, the defendant states that this notice was fatally defective because the letter was not sworn and because the plaintiff "failed to make an application for amendment" to a proper court, and that the District Court lacks statutory authority to consider such request.

General Municipal Law §50-e(2) contains the requirements for the form and contents of a Notice of Claim. This Court finds that the plaintiff's October 28, 2003 letter meets all of the requirements of General Municipal Law §50-e (2) with respect to the required form and content of a Notice of Claim, except for the requirement that it be sworn. However, inasmuch as there is no showing of prejudice to the defendant based on the fact that the letter was not "sworn to", is not a fatal defect and may be disregarded. (see, Smith v Scotty, 294 AD2d 11 [2nd Dept., 2002]). [*3]

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Accordingly, based upon the foregoing, defendant's motion for dismissal is denied and the Clerk is directed to set this matter down for trial at the Small Claims Part of the Third District Court, 435 Middle Neck Road, Great Neck, New York to be held on the 10th day of January, 2005 or as soon thereafter as counsel can be heard.

This constitutes the decision and order of this court.

DISTRICT COURT JUDGE

Dated: December 6, 2004

cc:Charles Schneider, plaintiff pro se.

Meyer, Suozzi, English & Klein, P,C., for defendant.