[HISTORY: Adopted by the Board of Trustees of the Village of Montgomery 7-1-1985 by L.L. No. 5-1985. Amendments noted where applicable.]
It is the intent of this chapter to require a notice of defect to be filed with the village so that the village may be placed on actual notice of any dangerous conditions and therefore be more capable to replace and repair defective village property and protect village residents from injury.
It is the intent of the Village Board of Trustees to require notice for all defects and/or dangerous conditions of any kind, type or nature, not just physical conditions, such as holes and cracks, so as to strengthen and increase the village's capacity to protect lives and property and the public welfare. (See Alexander vs. Eldred, 63 N.Y. 2d 460.) This chapter exists for the benefit of the public and the village and incidentally for the individual. [MacMullen vs. City of Middletown, 187, N.Y. 37 (1907).] This chapter is enacted pursuant to the powers granted to the village by virtue of Article IX, § 2(c)(5) of the New York State Constitution.
No cause of action shall accrue against or shall be maintained against the Village of Montgomery, Orange County, New York, or its officers, agents or employees for damages or injuries to a person or property sustained in consequence of any defective or out of repair village property or property under the direct or indirect control of the village unless a written notice of defect was first filed with the Village Clerk and there was a failure or neglect by the village within a reasonable time after the receipt of such written notice to repair or remove the defect, danger or obstruction. The filing of a notice of defect shall be a condition precedent to the filing or maintaining of an action or special proceeding against the village, its officers, agents or employees for such damage or injury to persons or property.
Village property or property under direct or indirect control of the village shall include, but not be limited to, any park, recreational facility, library, sewage treatment plant, water department property, garage, village hall, any other village building, property, street, highway, bridge, culvert, sidewalk, crosswalk or parts or appurtenances thereof. Defects, unsafe or dangerous conditions referred to in this chapter include, without limitation, the lack or absence of failure to provide or failure to maintain signs, safety devices, traffic control devices or snow and ice control.
The Village Clerk shall keep an indexed record of all notices of defect, which record shall indicate the time and date of receipt of the notices. After receipt, the Clerk shall forward copies of these notices to the Mayor and Board of Trustees prior to the next regularly scheduled Board meeting. Notices of defect shall be kept on record for at least five years.
The notice of defect shall state that it is a notice of defect, the name and address of the complainant, the specific nature of the defective condition and the exact location of the defective condition.
The notice of defect shall be signed by the complainant and be verified.
The notice shall be served on the village by either delivering a copy thereof personally to the Village Clerk or by certified or registered mail addressed to the Village Clerk.
This chapter shall not create new or additional liability for the village where there was no specific existing duty on the part of the village to repair or replace the defective or dangerous condition.
No claim shall be presented nor any action maintained against the village, its officers, agents or employees for damages or inquiries resulting from a defective or dangerous condition for which a notice of defect has been filed where the Board of Trustees has determined the remedy or action appropriate to cure such defective or dangerous condition unless such determination is without rational basis or is grossly negligent or unless the remedy or action specified in such determination has not been implemented within a reasonable time. Nothing in this chapter shall be deemed to preclude the Board of Trustees from making a determination that no remedial or corrective action is either necessary, appropriate or justified for a condition for which a notice of defect has been filed.