74 N.Y.2d 917 (1989)
A municipality’s prior written notice statute, requiring notice of unsafe conditions before a negligence action can be brought, applies to low-lying tree branches overhanging sidewalks that obstruct pedestrian passage.
Summary
Thomas Monteleone was injured by a low-hanging tree branch while walking on a sidewalk in the Village of Floral Park. He sued the Village, alleging negligence. The Village’s code required prior written notice of sidewalk obstructions before a lawsuit could be filed. The Court of Appeals held that the overhanging branch constituted an obstruction under the statute, requiring prior notice, which the Village did not receive. Furthermore, the Village’s failure to prune the tree was considered nonfeasance, not affirmative negligence, and therefore the prior notice requirement still applied.
Facts
Thomas Monteleone sustained an eye injury after being struck by a low-lying tree branch overhanging a sidewalk in the Village of Floral Park.
The Village of Floral Park had a local law (Section 57-1 of the Village Code) that mirrored Village Law §6-628, requiring prior written notice to the Village Clerk of any defective, unsafe, dangerous, or obstructed sidewalk condition before a civil action could be brought against the Village for related accidents. The Village did not receive any prior notice of the low-hanging branch.
Procedural History
Monteleone brought a negligence action against the Village of Floral Park. The lower courts dismissed the complaint, citing the Village’s prior notice statute. The Court of Appeals reviewed the decision.
Issue(s)
Whether a low-lying tree branch overhanging a sidewalk constitutes an “obstructed” condition within the meaning of the Village of Floral Park’s prior notice statute, thus requiring prior written notice to the Village before a negligence action can be maintained.
Whether the Village’s planting of the tree and subsequent failure to prune it constituted affirmative negligence, rendering the prior notice statute inapplicable.
Holding
1. Yes, because the low-lying tree branch created a condition that would not immediately come to the attention of Village officers without actual notice, thus falling under the purview of the prior notice statute.
2. No, because the Village’s planting and failure to prune the tree amounted to nonfeasance, not affirmative negligence; therefore, the prior notice statute remains applicable.
Court’s Reasoning
The Court reasoned that the prior notice statute should be strictly construed and applies to physical conditions in streets or sidewalks that do not immediately come to the attention of village officers unless actual notice is given. The Court distinguished this case from prior cases such as Alexander v. Eldred and Doremus v. Incorporated Village of Lynbrook, which concerned defective or missing traffic signs. The Court in those cases refused to extend the prior notice requirement to such conditions, because those conditions are likely to be noticed by village officers.
The Court emphasized that the overhanging tree branch was a condition that would not readily come to the Village’s attention without specific notice.
Regarding the affirmative negligence argument, the Court stated that the Village’s conduct amounted to nonfeasance (failure to act), not affirmative negligence. The Village’s initial planting of the tree did not create an immediate hazard; the hazard arose over time due to the lack of pruning. The court cited Muszynyski v. City of Buffalo, which held that failure to maintain a condition does not constitute affirmative negligence. The Court distinguished the facts from cases like Siddon v. Fishman Co., where the municipality’s actions directly created the hazardous condition.
The Court quoted Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366, supra: prior written notice statutes refer “to physical conditions in the streets or sidewalks * * * which do not immediately come to the attention of the village officers unless they are given actual notice thereof.”