Claudio v. Incorporated Village of Patchogue

Jan 13, 1997
Versions:235 A.D.2d 385
652 N.Y.S.2d 76
1997 N.Y. App. Div. LEXIS 191

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 22, 1996, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

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 Vil. of Floral Park, 74 NY2d 917; Parella v Levin, 111 AD2d 750). Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.