Horowitz v. County of Orange

215 A.D.2d 799, 626 N.Y.S.2d 296, 1995 N.Y. App. Div. LEXIS 4791

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1995
• Status: Published

Opinions

Casey, J. Appeal (transferred to this Court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Owen, J.), entered May 17, 1993 in Orange County, which granted defendant Town of Tuxedo’s motion for summary judgment dismissing the complaint against it.

Plaintiffs commenced this negligence action to recover damages arising out of a one-car accident which occurred when a vehicle operated by plaintiff Harvey Horowitz skidded on a patch of ice on a road in the Town of Tuxedo, Orange County. After issue was joined, defendant Town of Tuxedo (hereinafter the Town) moved for summary judgment based upon plaintiffs’ lack of compliance with a prior written notice requirement contained in the Town code. Supreme Court granted the motion, resulting in this appeal by plaintiffs.

In opposition to the Town’s motion, plaintiffs submitted the affidavit of an expert who was of the opinion that successive stone and oil treatments improperly applied to the road by the Town created a swale in the road where water collected and froze. Having submitted evidence that the Town’s negligence was not merely passive in failing to remove the ice but was active in creating the dangerous condition, plaintiffs were not required to demonstrate compliance with the Town’s prior written notice law (see, Parks v Hutchins, 162 AD2d 666, 668-669, affd 78 NY2d 1049; see also, Merchant v Town of Halfmoon, 194 AD2d 1031; Klimek v Town of Ghent, 134 AD2d 740, 741, Iv denied 71 NY2d 801).

The Town claims that the affidavit of plaintiffs’ expert cannot be considered because plaintiffs’ complaint alleges acts of passive negligence by the Town. The claim is meritless. Archaic, technical rules of pleading do not bar plaintiffs from establishing that they have a cause of action to defeat a motion for summary judgment (see, Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281; see also, Stengele v Bellino, 174 AD2d 563, 564; Canonico v Hayes, 127 AD2d 911, 913). In any event, although plaintiffs’ complaint contains allegations of the Town’s passive negligence, it also unambiguously alleges that the Town’s negligence "caused the ice condition to exist” (emphasis supplied), which clearly encompasses the affirmative acts of negligence alleged in the affidavit of plaintiffs’ expert. Insofar as plaintiffs’ claim against the Town is based upon allegations of nonfeasance, it is subject to dismissal for lack of compliance with the prior written notice requirement, but summary judgment must be denied as to the portion of plaintiffs’ claim based upon allegations that the Town created the dangerous condition (see, Merchant v Town of Halfmoon, supra).

Mikoll, J. P., and Crew III, J., concur.