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The Highway Law Does not Require Prior Written Notice of a Pothole to Sue a County

Virtually every governmental entity in New York State requires prior written notice of a street or sidewalk defect before an action can be brought for injuries sustained as a result of the defective condition.  Where no prior written notice is given, no law suit may be maintained.  But New York’s Highway Law provides a notable exception to this common requirement.  Under Highway Law § 139[2], notwithstanding the existence of a prior written notice statute, a county may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition.  Where, for example, county employees perform regularly scheduled inspections of a roadway containing potholes, the County may be deemed to be on notice of the need to repair the roadway, and may be found liable for injuries arising out of accidents caused by the potholes.

Other such defects may include uneven pavement, obstructions in the roadway, raised or recessed street hardware, or missing signs.  If these defects occur on a County road, it is not necessary to show that the County received prior written notice of them, even if the County enacts a regulation requiring such notice.

 If you or someone close to you is injured in an accident arising out of a defective roadway condition, and needs legal representation, make sure to consult with attorneys who are knowledgeable about governmental liability, such as the attorneys at Barasch McGarry Salzman & Penson.

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