GOOD v. COUNTY OF SULLIVAN (1997)

Appeal from a judgment of the Supreme Court (Kane, J.), entered September 27, 1995 in Sullivan County, upon a dismissal of the complaint at the close of plaintiff's case.

Earlier, assessing motions for summary judgment, we found that questions of fact arguably existed with respect to whether defendant was chargeable with negligence in the design or construction of the roadway where the subject automobile accident occurred (198 A.D.2d 706, 707-708, 604 N.Y.S.2d 285).  These claims, unlike those based upon allegations of negligent repair and maintenance, were not foreclosed by plaintiff's failure to plead and prove compliance with the applicable written notice provisions (id.).   A trial ensued, and at the close of plaintiff's case Supreme Court granted defendant's motion to dismiss the remaining causes of action, prompting this appeal.

 We affirm.   Plaintiff has simply failed to tender any proof substantiating her assertion that defendant designed or constructed the bridge or the portion of roadway where the accident occurred.   The documentary proof indicates that the road and bridge were already extant when defendant adopted its highway system in 1929.   The remainder of the trial evidence demonstrates, at most, that defendant's employees performed some unspecified work on the bridge on one occasion between 1932 and 1935, that the road was first paved in the early 1930s, and that it was repaved or surfaced several times thereafter.   Nothing in the record warrants a finding that these activities went beyond normal repair and maintenance, or that they actually created or exacerbated the purportedly dangerous condition that plaintiff contends caused the accident (see, Brody v. Town of Brookhaven, 207 A.D.2d 425, 615 N.Y.S.2d 739;  compare, Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 1033, 599 N.Y.S.2d 687;  Toohey v. Town of Brunswick, 191 A.D.2d 858, 595 N.Y.S.2d 132).   Absent a showing that defendant affirmatively created the hazard, dismissal was appropriate (see, Merkle v. Smith, 66 A.D.2d 913, 914, 410 N.Y.S.2d 722;  St. Denis v. Skidmore, 14 A.D.2d 981, 221 N.Y.S.2d 613, affd. 12 N.Y.2d 901, 237 N.Y.S.2d 1004, 188 N.E.2d 268).

ORDERED that the judgment is affirmed, without costs.

YESAWICH, Justice.

CARDONA, P.J., and MERCURE, WHITE and PETERS, JJ., concur.