Levin v. Fred Gary, Inc.

Motion for an order dismissing the complaint pursuant to subdivision 4 of rule 106 of the Eules of Civil Practice is denied.

On this motion to dismiss the complaint for legal insufficiency, the facts alleged must be deemed true. Paragraph 10 of the complaint states “ That the defendants * * * caused and permitted ice and snow to be * * * carelessly swept and allowed to remain and accumulate in a rough, irregular and uneven manner on the * * * sidewalk”. (Italics supplied.) This is an allegation of the creation of the condition by an affirmative act, and dispenses with the necessity of pleading the giving of written notice of the defective condition to the village. The notice provisions contained in section 341-a of the Village Law do not apply where the municipality creates the condition (cf. Calkins v. City of Plattsburgh, 11 A D 2d 153; Anderson v. Trustees of Inc. Vil. of Mineola, 23 Misc 2d 260).