Conroy v. County of Cattaraugus

176 A.D.2d 1228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1991
• Status: Published

Opinion

— Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiffs, who were injured when their car collided with a school bus at an intersection in the Town of Allegany, commenced this action against the County of Cattaraugus. The court erred in denying the County’s motion for summary judgment. It is undisputed that plaintiffs gave no prior written notice of a highway defect involving ice or snow, as required by Local Laws, 1982, No. 3 of the County of Cattaraugus (see, Highway Law § 139). Nor can it be said that the County’s failure to sand Route 61 was an act of affirmative negligence, to excuse noncompliance with the notice requirement (see, Piscione v County of Oneida, 159 AD2d 982; Powell v Gates-Chili Cent. School Dist., 50 AD2d 1079, 1079-1080; cf., Siddon v Fishman Co., 65 AD2d 832, lv denied 46 NY2d 714). (Appeal from Order of Supreme Court, Cattaraugus County, Feeman, Jr., J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.