Justice Eugene Faughnan

Village of Owego moved to dismiss plaintiffs' complaint in lieu of answering in this action by Arkin for personal injuries sustained after a fall while walking in the village due to an allegedly defective sidewalk. Plaintiffs sought leave of court to serve a late notice of claim, that was previously granted. Village alleged the complaint failed to allege that it received prior written notice of the alleged defect, created the condition through an affirmative act of negligence or the sidewalk conferred a benefit to the village—the only way it could be held liable. The court noted the defect alleged in plaintiffs' original complaint was insufficient to impose liability on the village, thus, lacked an allegation of prior written notice and only contained allegations of negligence with results occurring gradually over time, rather than immediate. This was insufficient to constitute an affirmative act exception to the prior written notice rule. Also, contrary to plaintiffs' claims that village laws extinguished a prior written notice requirement, the village cannot enact local laws inconsistent with state laws except in certain limited exceptions that were inapplicable herein. The court ruled plaintiffs' proposed amended complaint failed to allege written notice, or an exception to the notice rule, granting village dismissal.