Opinion
2011-11-1
Jacqueline T. BROWN, et al., appellants,v.COUNTY OF SUFFOLK, etc., et al., respondents.
John Ray, Miller Place, N.Y. (Vesselin Mitev of counsel), for appellants.Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for respondents.
John Ray, Miller Place, N.Y. (Vesselin Mitev of counsel), for appellants.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 order of the Supreme Court, Suffolk County (Farneti, J.), dated July 6, 2010, which denied their motion for summary judgment on the issue of prior written notice of the alleged hazardous condition and granted the defendants' cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the County Clerk did not receive prior written notice of the alleged hazardous highway condition as required by Suffolk County Charter § C8–2A. Although both the Department of Public Works and the County Executive received prior written notice, such notice was insufficient because neither one of those departments was a statutory designee under Suffolk County Charter § C8–2A ( see Gorman v. Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379, 907 N.E.2d 292).
Although written notice would not be required if the defendants created the condition by an affirmative act of negligence ( id. at 279, 879 N.Y.S.2d 379, 907 N.E.2d 292; see Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1008, 895 N.Y.S.2d 208), the evidence submitted by the plaintiffs in opposition to the defendants'
cross motion for summary judgment failed to raise a triable issue of fact as to whether the defendants' repair work immediately resulted in a pothole or other hazardous condition at the site of the injured plaintiff's accident ( see Oboler v. City of New York, 8 N.Y.3d 888, 889–890, 832 N.Y.S.2d 871, 864 N.E.2d 1270; Forbes v. City of New York, 85 A.D.3d 1106, 1106, 926 N.Y.S.2d 309; Richards v. Incorporated Vil. of Rockville Ctr., 80 A.D.3d 594, 594–595, 914 N.Y.S.2d 643; cf. Padula v. City of Long Beach, 20 A.D.3d 555, 556, 799 N.Y.S.2d 557). Contrary to the plaintiffs' contention, certain correspondence between the County Executive and the injured plaintiff did not estop the defendants from relying on the written notice requirement ( see Gorman v. Town of Huntington, 12 N.Y.3d at 280, 879 N.Y.S.2d 379, 907 N.E.2d 292; Schutz–Prepscius v. Incorporated Vil. of Port Jefferson, 51 A.D.3d 657, 658, 858 N.Y.S.2d 235). Accordingly, the Supreme Court properly granted the defendants' cross motion for summary judgment dismissing the complaint and denied the plaintiffs' motion for summary judgment on the issue of prior written notice.