Opinion
November 22, 1961
Appeal from a judgment entered on the verdict of a jury rendered at Trial Term, Supreme Court, Franklin County. This action against the Village of Saranac Lake is based on a claim that a water pipe or metal water shut-off device protruded one to two inches above the village sidewalk, causing the plaintiff to fall and suffer injury. A local law enacted by the village requires written notice be given to the Village Board of Trustees of a dangerous condition as a condition precedent to maintenance of any action for damages. (Local Laws, 1953, No. 2 of Village of Saranac Lake.) Such a statutory condition is valid and compliance with it must be alleged or proved in an action falling within the statutory area. ( MacMullen v. City of Middletown, 187 N.Y. 37; Ellis v. City of Geneva, 259 App. Div. 502, affd. 288 N.Y. 478; Skelly v. City of Port Chester, 6 A.D.2d 717.) It is conceded no such notice was given the defendant in this case; but it is argued by plaintiff in this court that the village "solely created" the dangerous condition and hence could not escape responsibility because it did not have the statutory written notice (cf. Ruggio v. City of Oswego, 4 Misc.2d 29; Anderson v. Trustees, Vil. of Mineola, 23 Misc.2d 260; Ellingsworth v. City of Watertown, 7 Misc.2d 402). There is, however, in this record no proof that the village created the hazard or that any affirmative act of the village caused the pipe or metal shut-off device to protrude one to two inches above the sidewalk. There is proof that the village sold the metal shut-off device to the owner of the premises in 1914; and that it granted permission to the owner to lay the pipe in the sidewalk area and connect it to the village water main; but the proof indicates that the practice was for the owner to hire his own plumber or contractor to make the installation; except that for the actual tapping of the village main a plumbing inspector of the village "is supposed to be there * * * to see if there are any leaks on the corporation, off the main". Although there is proof to this extent of supervision by the village of the connection of the pipe with the main, there is no proof either that the village installed the shut-off device in the sidewalk area or actually supervised its installation. There is proof that the village laid the sidewalk in 1914, but no proof whatever that the shut-off device was put in first and the sidewalk laid after at a level of from one to two inches below the shut-off device. Thus the record fails to establish such a "creation" of the danger by the village as to permit plaintiff to escape the necessity of giving the written notice which the statute requires. Judgment reversed, on the laws and facts, without costs, and the complaint dismissed. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.