| Loughren v County of Ulster |
| 2010 NY Slip Op 06208 [75 AD3d 976] |
| July 22, 2010 |
| Appellate Division, Third Department |
| James F. Loughren, Appellant, v County of Ulster,Respondent. |
—[*1] Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Robert D. Cook of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered April 22,2009 in Ulster County, which granted defendant's motion for summary judgment dismissing theamended complaint.
Plaintiff commenced this action against defendant, alleging that it was negligent inmaintaining a portion of Mohonk Road in the Village of High Falls, Ulster County where he fellafter stepping in a hole that was located on the shoulder of the roadway. After discovery wascomplete, defendant moved for summary judgment dismissing the complaint because writtennotice of the defect as required by a local law had not been served on it prior to plaintiff'saccident (see Local Law No. 6 [1980] of County of Ulster; see also HighwayLaw § 139).[FN1][*2]While conceding that such notice had not been provided,plaintiff argued that defendant had constructive notice that a hole existed in the shoulder of thehighway before his accident and, as such, service of written notice of the defect was not required(see Highway Law § 139 [2]). Supreme Court granted defendant's motion,prompting this appeal. We affirm.
Even if a local law exists requiring prior written notice of a defect, a civil action may becommenced absent such notice against a municipality for injuries resulting from a defect in ahighway under its care if the "defective, unsafe, dangerous or obstructed condition existed for solong a period that the same should have been discovered and remedied in the exercise ofreasonable care and diligence" (Highway Law § 139 [2]; see Napolitano v Suffolk County Dept. ofPub. Works, 65 AD3d 676, 677 [2009]; Phillips v County of Nassau, 50 AD3d 755, 756 [2008]; Dugerv Estate of Carey, 295 AD2d 878, 878 [2002]; DeHoust v Aakjar, 290 AD2d 927,927 [2002], lv dismissed 98 NY2d 692 [2002]).
Here, as previously noted, plaintiff acknowledges that defendant did not receive writtennotice of the existence of the defect prior to his accident, but claims that a photograph establishesthat the hole in the shoulder of the highway existed for a significant period of time prior to hisfall and, if the road had been properly maintained, the hole would have been discovered andrepaired before the accident occurred. In response, defendant submitted deposition testimony ofa Highway Department official who stated that he had inspected the roadway where the fall isalleged to have occurred each week for the entire year immediately prior to plaintiff's accidentand never saw the hole as depicted in the photograph or any other defect in that area of theroadway (see Moxey v County ofWestchester, 63 AD3d 1124, 1125 [2009]; Appelbaum v County of Sullivan,222 AD2d 987, 988 [1995]; see also Goldburt v County of Nassau, 307 AD2d 1019,1020 [2003], lv denied 1 NY3d 504 [2003]). In addition, plaintiff has not established thatthe photograph accurately reflected the condition or the configuration of the hole as it existed atthe time of his accident or when, in fact, the photograph was actually taken.[FN2]More importantly, the photograph, as the only evidence submitted by plaintiff as to the size andcondition of the defect, does not, in our view, establish that the hole existed for a sufficientperiod of time prior to the accident to have allowed defendant an adequate opportunity todiscover it and take steps necessary to remedy the condition (see Di Sanza v City of New York, 11 NY3d 766, 767 [2008];compare Tanner W. v County of Onondaga, 225 AD2d 1074, 1074-1075 [1996]). Simplystated, the evidence plaintiff submitted—or the lack thereof—did not serve toestablish that a question of fact exits as to whether defendant had constructive notice of the holealong the highway prior to this accident. As such, Supreme Court properly granted defendant'smotion for summary judgment dismissing the complaint.
Mercure, J.P., Peters, Spain and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The local law in question reads:"No civil action shall be maintained against the County of Ulster for damages or injuries toperson or property sustained in consequence of any road, street, highway . . . beingdefective, out of repair, unsafe, dangerous, or obstructed . . . unless at leastforty-eight (48) hours prior to the occurrence resulting in such damage or injuries written noticeof the defective, unsafe, dangerous and/or obstructed condition . . . shall have beenfiled in the Office of the Clerk of the Ulster County Legislature, and there was a failure orneglect to remedy or remove the defect, danger or obstruction within a reasonable time after thefiling of such notice."
Footnote 2: The record does not include ananswer to a question put to plaintiff at the General Municipal Law § 50-h hearing as towhen the photograph was taken.