WHO IS LIABLE FOR INJURIES FROM AN UNEVEN SIDEWALK IN ERIE COUNTY?
If a tree root has raised a public sidewalk in Amherst, Cheektowaga, Hamburg or Buffalo, before a claim may be sustained, the lawyer for the injured party must prove that “prior written notice” was given the appropriate official.
Prior Written Notice
Prior written notice is required for the class of accidents involving dangerous, defective and/or negligently maintained sidewalks, highways, bridges and other such travel ways including claims for snow and ice thereon. For example, as to Villages, Towns, Cities and Counties, prior written notice must have been “actually given” to the Village Clerk (Village Law §6-628); the Town Clerk (Town law §65-a ); the Buffalo City Clerk (Buffalo City Code §21-2); the County Clerk or County Highway Superintendent [Highway Law §139(2)]. The statutes require “written” notice.
Practical Tip: Send your “written notice” of a defective or dangerous condition, including snow and ice on highways or sidewalks, to the appropriate Clerk in Erie County via e-mail. That method permits immediate notice without the delays occasioned by the post office.
The Municipal officer is then required to remove the snow or ice or otherwise “make the area reasonably safe within a reasonable time after the receipt of such notice.”
Exceptions:
There are some municipalities that make the adjacent land owner liable for defective sidewalks and responsible for injuries therefrom. The requirement is that the municipality must have affirmatively enacted an ordinance permitting such suits. Amherst, Cheektowaga and Tonawanda are such towns in Erie County, New York.
Amherst Town Code: 83-9-5-1.1 Owner to Maintain sidewalk
"The owner or occupant of any premises fronting or abutting on any street or highway shall repair, keep safe and maintain any sidewalk abutting the premises and keep it free and clear from snow, ice, dirt or other obstruction. All trees, shrubs, plants and other vegetation must be cut back to a height of eight feet directly above the surface of any sidewalk. Any such owner or occupant shall be liable for any injury or damage by reason of omission or failure to repair, keep safe and maintain such sidewalk or to remove snow, ice or other obstructions therefrom or negligence in performing those functions."
Notice of Claim
Prior written notice alone is insufficient. Several more filings are required before a claim may be sustained. As to each governmental entity, for any claim of negligence, a “Notice of Claim” or “Notice of the Intention to Make a Claim” must be filed with the appropriate representative within ninety days of the accident. [General Municipal Law §50-e; Public Authorities Law 1299-p(2); Court of Claims Act §10-3; CPLR 9801(1)]. The failure to file this notice within ninety days may be excused by the court upon presenting evidence of , among other things, a justifiable excuse for the failure to timely file and evidence of meritious claim (General Municipal Law §50-e; Court of Claims Act §10-6).
Pre-Suit Examination Under Oath and
Physical Examination
Also before the actual claim may be served, certain public organizations must be afforded the opportunity to take a statement under oath from the injured claimant. [General Municipal Law §50-h; Public Authorities Law §1299-p(4)]. Also, there is an entitlement to conduct a defense medical examination by a physician of their choosing (General Municipal Law §50-h). Should the Complaint be filed before the governmental organization has such an opportunity, the Complaint will be considered a nullity.
Statute of Limitations
The statute of limitations against Public Authorities, such as the NFTA or the Thruway Authority, is one year. [Public Authorities Law §1299-p(2)] The statute of limitations for most claims against a Municipality, a Town or County is one year and ninety days. (General Municipal Law §50-e) Finally, the statute of limitations as to the State of New York is two years. (Court of Claims Act §10-3). These intentionally short statutes are contrasted by the three year statute of limitations for a general negligence action against a private individual or corporation. (CPLR 214)