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MINEOLA – A Village of Hempstead law requiring that it must have prior written notice of defective playground equipment before it can be sued for injuries sustained on such equipment has been struck down by a Nassau judge. Supreme Court Justice Thomas P. Phelan ( See Profile ) overturned the law as part of a ruling denying the village’s request for summary judgment in a lawsuit filed on behalf of a young boy who suffered a skull fracture when he fell from a dilapidated chain ladder and hit the back of his head on a combination lock in a playground at Kennedy Memorial Park on Aug. 3, 2002. In White v. Incorporated Village of Hempstead , 9227/03, the judge first ruled on the issue of whether an earlier order granting default summary judgment should be overturned. The decision will be published Friday. Justice Phelan had granted the village’s motion for summary judgment on Jan. 18 after the plaintiff failed to submit opposition papers by the stated return date, Jan. 3. Jamar White, who filed the lawsuit on behalf of his son, Nassim, who turns 8 on Aug. 19, later filed papers asking that the default judgment be rescinded. Mr. White said the plaintiffs missed the deadline for filing opposition papers because it relied on an erroneous report on the e-law Web site that said the Nassau County Supreme Court would be closed on Jan. 3. The plaintiffs said the failure to meet the deadline was an excusable error and that Justice Phelan’s earlier order granting default summary judgment to the defendant should be vacated. The judge agreed that the delay was excusable and vacated the default judgment. He then ruled on the village’s request for summary judgment. “Defendant argues that summary judgment is warranted because defendant had no prior written notice of the defective condition of the playground equipment,” Justice Phelan said. “Defendant does not purport that issues of fact exist as to whether the premises were reasonably safe and whether the dangerous condition was a substantial factor in causing infant plaintiff’s injuries. At issue, therefore, is only whether prior written notice of a defective condition is required under the circumstances before this court.” The defense pointed to the Code of the Village of Hempstead Sec. 39-1 (b), which states that no legal action can be taken against the village for injuries resulting from defective playground equipment unless the village had written notice of the defect prior to the accident. State Law Controls But Justice Phelan found that Hempstead’s law is superceded by ?6-628 of the state’s Village Law, which governs prior written notice requirements for villages, and by General Municipal Law ?50-e (4), which sets out prior notice requirements governing all municipalities. Village Law ?6-628 and General Municipal ?50-e (4) set out the same six specific instances in which a village must have prior written notice of a dangerous condition in order to be vulnerable to a lawsuit. But defective playground equipment is not listed among those instances. “No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk . . . 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 failure or neglect within a reasonable time after the receipt of such notice to repair and remove the defect,” Village Law ?6-628 states in part. Justice Phelan said Hempstead does not have the power to add playground equipment to the list of items requiring prior written notice because such an addition would violate General Municipal Law ?50-e(4), which states that “no other or further notice . . . shall be required as a condition to the commencement of an action.” He also said the inclusion of playground equipment in the same category as streets, highways, bridges, culverts, sidewalks and crosswalks would also violate Village Law ?6-628. “The legislature, in drafting Village Law Sec. 6-628, would not have enumerated six specific instances in which prior written notice of dangerous conditions may be required if it intended to allow for enactment of prior written notice in other circumstances,” Justice Phelan wrote. He then concluded that Hempstead’s prior written notice requirement for playground equipment was invalid. “The fact that defendant never received prior written notice of a defect in the playground equipment upon which infant plaintiff, Nassim White, was injured is not a viable defense to this cause of action,” wrote Justice Phelan in denying the defense’s request for summary judgment. “Plaintiffs may succeed in this action by proving that defendant created the dangerous condition or had actual or constructive notice of the dangerous condition,” he said, adding that triable issues of fact exist as to whether the village is liable for the child’s injuries. Missing Evidence Justice Phelan concluded his decision by ruling on plaintiff’s motion that the defendant’s answer should be stricken because it disposed of the playground equipment upon which Nassim was injured. Justice Phelan ruled that a less drastic remedy was in order. “Although defendant here spoliated a key piece of evidence, plaintiffs were nevertheless able to take color photographs of the chain ladder, the combination lock anchoring that chain ladder and the playground equipment to which the chain ladder was affixed,” Justice Phelan wrote. “Plaintiffs were then able to have an expert generate a report on the basis of physical inspection of the accident site and color photographs of the playground equipment. As such, plaintiffs have had some opportunity to examine the evidence, and have not been entirely prevented from proving their case. Accordingly, plaintiffs’ motion to strike defendant’s answer is denied.” Justice Phelan added that “an alternative sanction against defendants, however, is warranted in the form of a missing evidence charge to the jury at the time of the trial.” He wrote that “such a charge will allow a jury to determine the weight that the spoliation of the playground equipment bears on defendant’s position and the overall outcome of this action.” The plaintiffs are represented by Beth Girsch of Mallilo & Grossman in Brooklyn. “Obviously we’re extremely pleased with the court’s decision,” she said. Ms. Girsch said Nassim is still feeling the physical effects of the accident more than four years after it occurred, although she declined to give more details about the boy’s condition without the permission of his parents. The Village of Hempstead is represented by William J. Garry of Garry & Garry in Manhattan. He said he is disappointed with the decision and that the village may appeal. – Michael Scholl can be reached at [email protected] .

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