| Napolitano v Suffolk County Dept. of Pub. Works |
| 2009 NY Slip Op 06319 [65 AD3d 676] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Albert A. Napolitano et al., Respondents, v SuffolkCounty Department of Public Works et al., Appellants. |
—[*1] John D. Randazzo, Hawthorne, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal (1) from anorder of the Supreme Court, Suffolk County (R. Doyle, J.), dated February 13, 2008, whichdenied their motion for summary judgment dismissing the complaint, and (2), as limited by theirbrief, from so much of an order of the same court dated July 30, 2008, as, upon reargument,adhered to the original determination.
Ordered that the appeal from the order dated February 13, 2008, is dismissed, as that orderwas superseded by the order dated July 30, 2008, made upon reargument; and it is further,
Ordered that the order dated July 30, 2008, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
The injured plaintiff was riding his motorcycle when he allegedly rode over a pothole in theroadway, causing him to fall to the ground. The plaintiffs thereafter commenced this actionagainst the defendants. The defendants moved for summary judgment dismissing the complaint,contending that they did not have prior written notice of the alleged defect, as required underSuffolk County Charter § C8-2A. The Supreme Court denied the motion, relying upon theamended Suffolk County Charter § C8-2 (A) (2), which was not in effect at the time of theaccident, instead of its predecessor Suffolk County Charter § C8-2A. Upon reargument,the Supreme Court adhered to its original determination. We affirm.
A party moving for summary judgment must make a prima facie showing of entitlement tojudgment as a matter of law, offering sufficient evidence to demonstrate the absence of anymaterial issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]). The failure to make such a primafacie showing requires the denial of the [*2]motion regardless ofthe sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]; Elzer v Nassau County, 111 AD2d 212 [1985]).
Under Highway Law § 139 (2), a county can enact a prior written notice statute thatprovides that it may not be subjected to liability for injuries caused by an improperly maintainedhighway unless either it has received prior written notice of the defect or an exception to theprior written notice requirement applies (see Gold v County of Westchester, 15 AD3d 439, 440 [2005]; see generally Cendales v City of NewYork, 25 AD3d 579 [2006]; Field v Stubelek, 238 AD2d 467 [1997]). However,the statute also provides that, as a matter of law, constructive notice of a highway defect, exceptin the case of snow and ice, is an exception to any such prior written notice requirement,irrespective of whether or not the local statute provides for such an exception (see Moxey v County of Westchester,63 AD3d 1124 [2009]; Phillips vCounty of Nassau, 50 AD3d 755 [2008]; Duger v Estate of Carey, 295 AD2d878 [2002]; Dalby v County of Saratoga, 206 AD2d 722 [1994]; Carlino v City ofAlbany, 118 AD2d 928 [1986]; seealso Glaser v County of Orange, 22 AD3d 720 [2005]; Gold v County of Westchester, 15AD3d 439 [2005]).
Here, while the defendants established their entitlement to summary judgment on the issue ofprior written notice by submitting evidence that they had no prior written notice of the roadwaydefect that allegedly caused the accident, they failed to submit any admissible evidence on theissue of whether or not they had constructive notice of the alleged defect. Accordingly, theyfailed to meet their burden of showing their entitlement to summary judgment dismissing thecomplaint. In light of this determination we need not examine the sufficiency of the plaintiffs'opposing papers (see generally Alvarez v Prospect Hosp., 68 NY2d at 324). Skelos, J.P.,Florio, Leventhal and Hall, JJ., concur.