| Bright v Village of Great Neck Estates |
| 2008 NY Slip Op 06788 [54 AD3d 704] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Christopher Bright et al., Respondents, v Village of GreatNeck Estates, Defendant, and County of Nassau, Appellant. |
—[*1] Hach & Rose, LLP, New York, N.Y., for respondents.
In an action to recover damages for personal injuries, the defendant County of Nassauappeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County(Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motorvehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter,the plaintiffs commenced this action, alleging, inter alia, that the accident and their resultinginjuries were proximately caused by the negligence of the defendant County of Nassau in failing,among other things, to remove a dead and/or diseased tree. The County subsequentlycross-moved for summary judgment dismissing the complaint insofar as asserted against it on thegrounds that the plaintiffs had not complied with the prior written notice requirement set forth insection 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual andconstructive notice of the purported hazard. The County additionally sought to dismiss thecomplaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did notsustain a serious injury within the meaning of Insurance Law § 5102 (d). The SupremeCourt properly denied the County's cross motion.[*2]
Prior written notice statutes apply to "actual physicaldefects in the surface of a street, highway [or] bridge . . . of a kind which do notimmediately come to the attention of the [town] officers unless they are given actual noticethereof" (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366 [1966]; see Fulgum v Town of Cortlandt, 2AD3d 775, 776 [2003]). Accordingly, the prior written notice requirement invoked by theCounty does not apply to the facts of this case. Furthermore, the County failed to establish aprima facie case that it lacked actual and constructive notice of the alleged hazard in this case(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Collado v Incorporated Town and/or Vil. ofFreeport, 6 AD3d 378, 379 [2004]). Lastly, the plaintiff Lakeysha Agugbo was notrequired to establish that she sustained a serious injury in the subject accident as she did notallege any negligence on the part of the County in the use or operation of a motor vehicle.Instead, the allegations against the County related to premises liability. Therefore the Countydoes not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and§ 5104 (a). Spolzino, J.P., Fisher, Carni and Dickerson, JJ., concur.