Kirschner v. Town of Woodstock

Mahoney, P. J., and Weiss, J.,

dissent and vote to reverse in

a memorandum by Weiss, J. Weiss, J. (dissenting). We respectfully dissent. There is no question that prior written notice of the alleged defect as required by Town Law § 65-a (2) was not provided. Absent such notice, the town may be liable for instances of affirmative negligence (see, Waring v City of Saratoga Springs, 92 AD2d 1080; Siddon v Fishman Co., 65 AD2d 832, 833, lv denied 46 NY2d 714), but as the majority explains, the mere failure to clear ice and snow from a municipal walkway does not trigger the affirmative negligence…