| Griesbeck v County of Suffolk |
| 2007 NY Slip Op 07400 [44 AD3d 618] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Robert A. Griesbeck et al., Appellants, v County ofSuffolk, Respondent, et al., Defendants. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (T. Michael Conlon of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle,J.), entered January 25, 2006, as granted the motion of the defendant County of Suffolk forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly concluded that the defendant County of Suffolk was entitled tosummary judgment dismissing the complaint insofar as asserted against it. Where, as here, amunicipality has enacted a prior written notice statute, it may not be subjected to liability forinjuries caused by an improperly maintained roadway unless either it has received prior writtennotice of the defect or an exception to the prior written notice requirement applies (see Cendales v City of New York, 25AD3d 579 [2006]; Field v Stubelek, 238 AD2d 467 [1997]; Misek-Falkoff vVillage of Pleasantville, 207 AD2d 332 [1994]). Here, the County established its prima facieentitlement to summary judgment by submitting evidence that it had no prior written notice ofthe roadway defect which allegedly caused the automobile collision at issue. In opposition, theplaintiffs failed to raise a triable issue of fact regarding whether the County had received priorwritten notice or whether an exception to the prior written notice requirement applied (seeAmabile v City of Buffalo, 93 NY2d 471 [1999]; Passaro v City of Newburgh, 272AD2d 385 [2000]; Tyschak v Incorporated Vil. of Westbury, 193 AD2d 670 [1993]).[*2]
The plaintiffs' constructive notice contentions as toHighway Law § 139 (2) were not raised before the Supreme Court, and thus have not beenconsidered on appeal. Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.