[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.
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.
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.
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.
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.
The notice of defect shall be signed by the complainant and be verified.
C.
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.
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.
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.
