| Moxey v County of Westchester |
| 2009 NY Slip Op 05523 [63 AD3d 1124] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Helene Moxey, Respondent, v County of Westchester,Appellant. |
—[*1] Rosenbaum & Rosenbaum, P.C., New York, N.Y. (Joseph Dugan of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Westchester County (Loehr, J.), entered May 8, 2008, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly sustained personal injuries when she drove her car over a large treelimb which had fallen onto the northbound roadway of the Bronx River Parkway, in the vicinityof the Ardsley Road overpass, on the afternoon of September 8, 2004, a day marked by heavyrainfall in the area of the accident.
After the plaintiff commenced this action, the defendant moved for summary judgmentdismissing the complaint on the ground that it lacked prior written notice or constructive noticeof the roadway obstruction. Section 780.01 of the Westchester County Code requires priorwritten notice of a defect before a civil action may be maintained against the County for injuriessustained as a result of a defect on a public street or highway (see Phillips v County ofNassau, 50 AD3d 755, 756 [2008]). Here, the affidavits of the defendant's employees TinaSeckerson and Ralph Butler established prima facie that the defendant did not have prior writtennotice of the downed tree limb on the roadway at the Ardsley overpass location. The evidencewhich the plaintiff submitted in opposition failed to raise a triable issue of fact (seeCPLR 3212 [b]). However, Highway Law § 139 (2) allows for tort recovery fordangerous highway conditions, where, in the absence of prior written notice, "such defective,unsafe, dangerous or obstructed condition existed for so long a period that the same should havebeen discovered and remedied in the exercise of reasonable care and diligence." Thus, liabilitymay be imposed on the defendant, even in the absence of prior written notice, for dangeroushighway conditions of which it had constructive notice (see Phillips v County of Nassauat 756). The deposition testimony of road foreman Joseph Rauso, which the defendantsubmitted in support of its motion, indicated that, on an ordinary day, in the course of his patrols,he would drive past the subject location three or four times, over a seven-hour period, and that hedid not recall observing any downed [*2]tree limbs, when he didso, on September 8, 2004. This evidence established, prima facie, that the defendant did not haveconstructive notice of the downed tree limb at the Ardsley overpass location. In opposition, theplaintiff again failed to raise a triable issue of fact (see CPLR 3212 [b]). Accordingly, theSupreme Court should have granted the defendant's motion for summary judgment dismissingthe complaint. Skelos, J.P., Santucci, Belen and Chambers, JJ., concur.