[Adopted 6-10-1985 by L.L. No. 4-1985 (Ch. 141 of the 1975
Code)]
It is the intent of this article to require
a notice of defect to be filed with the Town so that the Town may
be placed on actual notice of any dangerous conditions and therefore
more capable to replace and repair defective Town property and protect
Town residents from injury. It is the intent of the Town Board to
require notice for all defects and dangerous conditions of any kind,
type or nature, not just physical conditions such as holes and cracks,
so as to strengthen and increase the Town's capability to protect
lives and property and the public welfare (see Alexander v. Eldred,
63 New York 2d 460). This article exists for the benefit of the public
and the Town, and incidentally for the individual [MacMullen v. City
of Middletown, 187 New York 37 (1907)]. This article is enacted pursuant
to the powers granted to the Town 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 Town of Blooming Grove, Orange County, New
York, its officers, agents or employees for damages or injuries to
a person or property sustained in consequence of any defective, out
of repair, unsafe, dangerous or obstructed Town property or property
under the direct or indirect control of the Town, unless a written
notice of defect was first filed with the Town Clerk and there was
a failure or neglect by the Town 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 Town, its officers, agents or employees for such damage
or injury to person or property.
[Amended 1-25-1999 by L.L. No. 1-1999; 8-2-2022 by L.L. No. 6-2022]
Town property shall include streets, highways,
bridges, culverts, and crosswalks. Defects, unsafe or dangerous conditions
referred to in this article 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 Town 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 Town Supervisor and, with respect to
highway-related notices, to the Town Superintendent of Highways. Notices
of defect shall be kept on record for at least five years.
A.Â
This article shall not create new or additional liability
for the Town where there was no specific existing duty on the part
of the Town to repair or replace the defective or dangerous condition.
B.Â
No claim shall be presented, nor any action maintained
against the Town, its officers, agents or employees for damages or
injuries resulting from a defective or dangerous condition for which
a notice of defect has been filed where the Town Board 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 article shall be deemed to preclude the Town Board 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.
