Opinion
1237 CA 14-00652
11-21-2014
David P. CRAIG, Plaintiff–Respondent, v. TOWN OF RICHMOND, Defendant–Appellant.
Lynch Law Office, Syracuse, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Defendant–Appellant. Faraci Lange, LLP, Rochester (Joseph A. Regan of Counsel), for Plaintiff–Respondent.
Lynch Law Office, Syracuse, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Defendant–Appellant.
Faraci Lange, LLP, Rochester (Joseph A. Regan of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS AND VALENTINO, JJ.
Opinion
MEMORANDUM:Plaintiff commenced this action seeking, inter alia, damages for injuries he sustained when he was thrown from his motorcycle on a road owned and maintained by defendant. Defendant moved for summary judgment dismissing the complaint, and Supreme Court granted the motion except with respect to plaintiff's claims that defendant failed to install adequate signs warning of the allegedly rough road conditions. We conclude that the court should have granted the motion in its entirety.
Defendant met its initial burden on the motion by establishing that it did not receive prior written notice of the allegedly dangerous or defective condition of the roadway as required by its local law (see Hume v. Town of Jerusalem, 114 A.D.3d 1141, 1141, 980 N.Y.S.2d 183 ; Benson v. City of Tonawanda, 114 A.D.3d 1262, 1263, 980 N.Y.S.2d 683 ) and, indeed, plaintiff does not dispute the absence of prior written notice (see Sola v. Village of Great Neck Plaza, 115 A.D.3d 661, 662, 981 N.Y.S.2d 545 ; Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309 ). The burden thus shifted to plaintiff to demonstrate the applicability of an exception to that requirement (see
Brick v. City of Niagara Falls, 121 A.D.3d 1591, 1592, 994 N.Y.S.2d 224 ; Hume, 114 A.D.3d at 1141–1142, 980 N.Y.S.2d 183 ; Pulver v. City of Fulton Dept. of Public Works, 113 A.D.3d 1066, 1066, 979 N.Y.S.2d 431 ). We agree with defendant that plaintiff failed to meet his burden (see Brick, 121 A.D.3d at 1592, 994 N.Y.S.2d 224 ; Pulver, 113 A.D.3d at 1067, 979 N.Y.S.2d 431 ).
Although plaintiff is correct that prior written notice laws “do [ ] not apply to a municipality's failure to erect proper speed limit or other traffic control signs” (Herzog v. Schroeder, 9 A.D.3d 669, 671, 780 N.Y.S.2d 226 ; see Alexander v. Eldred, 63 N.Y.2d 460, 467, 483 N.Y.S.2d 168, 472 N.E.2d 996 ; Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 365–366, 275 N.Y.S.2d 505, 222 N.E.2d 376 ), or to similar claims alleging negligence in the design or construction of a roadway (see Hughes v. Jahoda, 75 N.Y.2d 881, 883, 554 N.Y.S.2d 467, 553 N.E.2d 1015 ; Hubbard v. County of Madison, 93 A.D.3d 939, 943, 939 N.Y.S.2d 619, lv. denied 19 N.Y.3d 805, 2012 WL 2036586 ), that principle does not apply here. Rather, plaintiff claims that defendant failed to erect signs warning motorists of the “condition of the pavement ” i.e., a condition that requires prior written notice under defendant's local law and for which no such notice was provided (see Hughes, 75 N.Y.2d at 882, 554 N.Y.S.2d 467, 553 N.E.2d 1015 ; Bacon v. Arden, 244 A.D.2d 940, 940–941, 665 N.Y.S.2d 154 ). We agree with defendant that it has no “duty to place a warning sign for ‘a condition that would not normally come to its attention absent actual notice’ ” (Bacon, 244 A.D.2d at 941, 665 N.Y.S.2d 154 ).
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety, and the complaint is dismissed.