[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.]
A.Â
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.
B.Â
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.
A.Â
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.
A.Â
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.
B.Â
The notice of defect shall be signed by the complainant
and be verified.
C.Â
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.
A.Â
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.
B.Â
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.