| Brown v County of Suffolk |
| 2011 NY Slip Op 07793 [89 AD3d 661] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Jacqueline T. Brown et al., Appellants, v County of Suffolket al., Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Farneti, J.), dated July 6, 2010, which denied theirmotion for summary judgment on the issue of prior written notice of the alleged hazardouscondition and granted the defendants' cross motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law bydemonstrating that the County Clerk did not receive prior written notice of the alleged hazardoushighway condition as required by Suffolk County Charter § C8-2A. Although both theDepartment of Public Works and the County Executive received prior written notice, such noticewas insufficient because neither one of those departments was a statutory designee under SuffolkCounty Charter § C8-2A (seeGorman v Town of Huntington, 12 NY3d 275, 280 [2009]).
Although written notice would not be required if the defendants created the condition by anaffirmative act of negligence (id. at 279; see Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]),the evidence submitted by the plaintiffs in opposition to the defendants' cross motion forsummary judgment failed to raise a triable issue of fact as to whether the defendants' repair workimmediately resulted in a pothole or other hazardous condition at the site of the injured plaintiff'saccident (see Oboler v City of NewYork, 8 NY3d 888, 889-890 [2007]; Forbes v City of New York, 85 AD3d 1106, 1106 [2011]; Richards v Incorporated Vil. of RockvilleCtr., 80 AD3d 594, 594-595 [2011]; cf. Padula v City of Long Beach, 20 AD3d 555, 556 [2005]).Contrary to the plaintiffs' contention, certain correspondence between the County Executive andthe injured plaintiff did not estop the defendants from relying on the written notice requirement(see Gorman v Town of Huntington, 12 NY3d at 280; Schutz-Prepscius v Incorporated Vil. of Port Jefferson, 51 AD3d657, 658 [2008]). Accordingly, the Supreme Court properly granted the defendants' crossmotion for summary judgment dismissing the complaint and denied the plaintiffs' motion forsummary judgment on the issue of prior written notice. Angiolillo, J.P., Florio, Leventhal andCohen, JJ., concur.