Bourque v. Cnty. of Dutchess

• Docket Number: s. 2020-07350,2021-02900,Index No. 52734/18
• Decision Date: 05 July 2023
• Citation: 2023 NY Slip Op 03674
• Parties: Natasha Bourque, appellant, v. County of Dutchess, respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03674

Natasha Bourque, appellant, v. County of Dutchess, respondent.

Nos. 2020-07350, 2021-02900, Index No. 52734/18

Supreme Court of New York, Second Department

July 5, 2023

Goldblatt & Associates, P.C., Mohegan Lake, NY (Kenneth B. Goldblatt of counsel), for appellant.

Murphy Burns, LLP, Loudonville, NY (James J. Burns of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, WILLIAM G. FORD JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court Dutchess County (Hal B. Greenwald, J.), dated September 10, 2020, and (2) an order of the same court dated March 5, 2021. The order dated September 10, 2020, granted the defendant's motion for summary judgment dismissing the complaint. The order dated March 5, 2021, insofar as appealed from, in effect, upon reargument, adhered to the determination in the order dated September 10, 2020, granting the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the appeal from the order dated September 10, 2020, is dismissed, as that order was superseded by the order dated March 5, 2021, made, in effect, upon reargument; and it is further, ORDERED that the order dated March 5, 2021, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendant.

On June 1, 2017, the plaintiff allegedly was injured while riding a motorcycle when she crashed due to debris on a roadway in Dutchess County. On August 16, 2017, the plaintiff served a notice of claim on the County, alleging, inter alia, that the location of the accident was "on, in and around Dog Tails Corners Road, Hamlet of Wingdale, Town of Dover, County of Dutchess, State of New York." In August 2018, the plaintiff commenced this action to recover damages for personal injuries against the County, alleging that the County was negligent in the design, maintenance, and inspection of the subject road. Thereafter, the County moved for summary judgment dismissing the complaint, arguing, among other things, that the notice of claim failed to set forth the location of the accident with sufficient specificity. In an order dated September 10, 2020, the Supreme Court granted the County's motion for summary judgment dismissing the complaint. Thereafter, the plaintiff moved for leave to reargue her opposition to the County's motion for summary judgment. In an order dated March 5, 2021, the court, in effect, upon reargument, adhered to its prior determination in the order dated September 10, 2020. The plaintiff appeals.

"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" (Brown v City of New York, 95 N.Y.2d 389, 392; see General Municipal Law § 50-e; Delisser v New York City Tr Auth., 211 A.D.3d 907, 907). General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, "the time when, the place where and the manner in which the...