COX v. COUNTY OF ALLEGANY

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Supreme Court, Appellate Division, Fourth Department, New York.

Herbert COX and Karen Cox, Plaintiffs-Appellants, v. COUNTY OF ALLEGANY and Town of Friendship, Defendants-Respondents.  (Appeal No. 2.)

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Robert J. Maranto, Jr., Buffalo, for Plaintiffs-Appellants. Katherine B. Roach, Buffalo, for Defendant-Respondent Town of Friendship. D. Patrick Gallaher, Buffalo, for Defendant-Respondent County of Allegany.

 Supreme Court properly granted those parts of the motion of defendant County of Allegany and cross motion of defendant Town of Friendship seeking summary judgment dismissing the complaint insofar as it alleged negligent removal of snow and ice from County Road 20.   Defendants established that neither municipality had prior written notice of a defective condition, and actual or constructive notice is not a substitute for compliance with the prior written notice requirement (see, Amabile v. City of Buffalo, 93 N.Y.2d 471, 473-474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Sorrento v. Duff, 261 A.D.2d 919, 690 N.Y.S.2d 368;  Wisnowski v. City of Syracuse, 213 A.D.2d 1069, 624 N.Y.S.2d 329).

 The court properly granted defendants' motions to reargue the prior motion and cross motion for summary judgment.   Defendants had each filed a notice of appeal from the original order.   Thus, the motion to reargue “ ‘did not serve as a substitute for failure to timely take an appeal’ ”, and defendants moved for reargument within a reasonable time (Connolly v. Toys-R-Us, 250 A.D.2d 721, 672 N.Y.S.2d 258, quoting Bermudez v. New York City Hous. Auth., 199 A.D.2d 356, 357, 605 N.Y.S.2d 352).   Upon reargument, the court properly dismissed the complaint.   The allegations of negligent design and construction of County Road 20 were made for the first time in the bill of particulars.   Plaintiffs failed to assert that cause of action in the notice of claim, and the Statute of Limitations had run by the time plaintiffs served the bill of particulars (see, Chipurnoi v. Manhattan & Bronx Surface Tr. Operating Auth., 216 A.D.2d 171, 171-172, 628 N.Y.S.2d 666).

Order unanimously affirmed without costs.

MEMORANDUM: