NAPOLITANO v. SUFFOLK COUNTY DEPARTMENT OF PUBLIC WORKS (2009)

In an action to recover damages for personal injuries, etc., the defendants appeal (1) from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated February 13, 2008, which denied their motion for summary judgment dismissing the complaint, and (2), as limited by their brief, from so much of an order of the same court dated July 30, 2008, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated February 13, 2008, is dismissed, as that order was superseded by the order dated July 30, 2008, made upon reargument;  and it is further,

ORDERED that the order dated July 30, 2008, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The injured plaintiff was riding his motorcycle when he allegedly rode over a pothole in the roadway, causing him to fall to the ground.   The plaintiffs thereafter commenced this action against the defendants.   The defendants moved for summary judgment dismissing the complaint, contending that they did not have prior written notice of the alleged defect, as required under Suffolk County Charter § C8-2A.   The Supreme Court denied the motion, relying upon the Amended Suffolk County Charter § C8-2(A)(2), which was not in effect at the time of the accident, instead of its predecessor Suffolk County Charter § C8-2A.   Upon reargument, the Supreme Court adhered to its original determination.   We affirm.

 A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The failure to make such a prima facia showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Elzer v. Nassau County, 111 A.D.2d 212, 489 N.Y.S.2d 246).

 Under Highway Law § 139(2), a county can enact a prior written notice statute that provides that it may not be subjected to liability for injuries caused by an improperly maintained highway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Gold v. County of Westchester, 15 A.D.3d 439, 440, 790 N.Y.S.2d 675;  see generally Cendales v. City of New York, 25 A.D.3d 579, 807 N.Y.S.2d 414;  Field v. Stubelek, 238 A.D.2d 467, 657 N.Y.S.2d 58).   However, the statute also provides that, as a matter of law, constructive notice of a highway defect, except in the case of snow and ice, is an exception to any such prior written notice requirement, irrespective of whether or not the local statute provides for such an exception (see Moxey v. County of Westchester, 63 A.D.3d 1124, 883 N.Y.S.2d 80;  Phillips v. County of Nassau, 50 A.D.3d 755, 856 N.Y.S.2d 172;  Duger v. Estate of Carey, 295 A.D.2d 878, 744 N.Y.S.2d 262;  Dalby v. County of Saratoga, 206 A.D.2d 722, 614 N.Y.S.2d 658;  Carlino v. City of Albany, 118 A.D.2d 928, 499 N.Y.S.2d 814;  see also Glaser v. County of Orange, 22 A.D.3d 720, 803 N.Y.S.2d 669;  Gold v. County of Westchester, 15 A.D.3d 439, 790 N.Y.S.2d 675).

 Here, while the defendants established their entitlement to summary judgment on the issue of prior written notice by submitting evidence that they had no prior written notice of the roadway defect that allegedly caused the accident, they failed to submit any admissible evidence on the issue of whether or not they had constructive notice of the alleged defect.   Accordingly, they failed to meet their burden of showing their entitlement to summary judgement dismissing the complaint.   In light of this determination we need not examine the sufficiency of the plaintiffs' opposing papers (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).