
    Melvin Rodriguez, an Infant, by Esther Rodriguez, His Guardian ad Litem, Plaintiff, v. Village of Ossining, Defendant.
    Supreme Court, Westchester County,
    March 3, 1961.
    
      Bown, Braham Koehler for defendant. Michael E. Cannato for plaintiff.
   Hugh S. Coyle, J.

Motion by defendant for an order pursuant to the provisions of subdivision 4 of rule 106 of the Rules of Civil Practice, dismissing the complaint upon the ground that it does not set forth facts sufficient to constitute a cause of action, is denied.

In the complaint, infant plaintiff seeks to recover damages on account of an injury he sustained while “walking on the stairway more fully described in numbered paragraph ‘ third ’ he was caused to sustain severe and serious personal injuries ”.

The defendant in its memorandum in support of the motion, cites section 341-a of the Village Law of the State of New York, and Local Law No. 1 of the Local Laws of 1953 of the Village of Ossining, which amends section 341-a of the Village Law, which provides as follows:

“§ 341-a. No civil action shall he maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructed condition, or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or cause the snow or ice to be removed, or the place otherwise made reasonably safe. ’ ’

Local Law No. 1 of the Local Laws of 1953 of the Village of Ossining provides as follows:

‘ ‘ Section 1. Section three hundred and forty-one-a of the Village Law as added thereto by chapter six hundred and fifty of the Laws of nineteen hundred and twenty-seven, as it applies to the village of Ossining, is hereby amended to read as follows:

‘ ‘ § 341-a. Liability of village in certain actions.

‘ ‘ No civil action shall be brought or maintained against the village of Ossining for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or in consequence of the existence or accumulation of snow or ice upon any street, highway, bridge, culvert, sidewalk or crosswalk unless written notice of the existence of such condition, relating to the particular place, had theretofore actually been given to the board of trustees of the village of Ossining, and there had been a failure or neglect on the part of said village to cause such condition to be corrected or such snow or ice to be removed, or the place otherwise made' reasonably safe within a reasonable time after the receipt of such notice.”

In order for the defendant to succeed in its application, it must be shown that a stairway is included within the places enumerated in the statute. It appears that the section deals exclusively with a “street”, a “highway”, a “bridge”, a “ culvert ”, a “ sidewalk ”, or a “ crosswalk ”. Nowhere in the complaint is the locale where plaintiff is alleged to have been injured referred to as one of the above locations. The complaint sought to be dismissed, specifically alleges a ‘ ‘ stairway ” as the place of occurrence. It, therefore, follows that even though no prior written notice is alleged, the complaint is not subject to dismissal upon the ground assigned by defendant.  