Pasternak v. Cnty. of Chenango
| Decision Date | 07 December 2017 |
| Docket Number | 524725 |
| Citation | 67 N.Y.S.3d 670,156 A.D.3d 1007 |
| Parties | Steven T. PASTERNAK, Respondent, v. COUNTY OF CHENANGO, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
156 A.D.3d 1007
67 N.Y.S.3d 670
Steven T. PASTERNAK, Respondent,
v.
COUNTY OF CHENANGO, Appellant, et al., Defendants.
524725
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 18, 2017
Decided and Entered: December 7, 2017
Coughlin & Gerhart, LLP, Binghamton (Kathleen D. Foley of Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, of counsel), for appellant.
Conway & Kirby, PLLC, Delmar (Andrew W. Kirby of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Rose, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from an order of the Supreme Court (Dowd, J.), entered September 19, 2016 in Chenango County, which denied a motion by defendant County of Chenango for summary judgment dismissing the complaint against it.
In August 2012, plaintiff was operating his motorcycle on a roadway owned and maintained by defendant County of Chenango (hereinafter defendant) when he lost control and was thrown off. Plaintiff commenced this action, alleging, among other things, that defendant was negligent in the design, construction and maintenance of the subject roadway. Defendant thereafter moved for summary judgment dismissing the complaint, arguing, among other things, that it had never received prior written notice of the alleged defect, as required by local law. Supreme Court denied defendant's motion, holding that, in opposition to defendant's motion, plaintiff established that issues of fact existed as to constructive notice and proximate cause. Defendant appeals and we affirm, albeit on somewhat different grounds.
The general rule is that if a municipality enacts a prior written notice statute, unless such notice is duly furnished, "a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective ... highway" ( Smith v. Village of Hancock, 25 A.D.3d 975, 975, 809 N.Y.S.2d 589 [2006] ; see Cornish v. City of Ithaca, 149 A.D.3d 1321, 1322, 52 N.Y.S.3d 565...
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