        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

562
CA 10-02522
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


GINNETTE HORAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF TONAWANDA, DEFENDANT-RESPONDENT.


LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (LAURA C. DOOLITTLE OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered February 22, 2010 in a personal injury
action. The order granted the motion of defendant for summary
judgment dismissing the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she tripped over a pothole in a road owned
and maintained by defendant. Contrary to plaintiff’s contention,
Supreme Court properly granted defendant’s motion for summary judgment
dismissing the amended complaint. Pursuant to Town Law § 65-a (1), a
town may be liable for a dangerous highway condition if it had either
prior written notice or constructive notice of the dangerous
condition. Town of Tonawanda Code (Town Code) § 68-2 (A) provides,
however, that defendant may be liable only if it had prior written
notice of the dangerous condition. In support of its motion,
defendant established as a matter of law that it lacked prior written
notice of the pothole, but it failed even to address whether it lacked
constructive notice thereof. Plaintiff thus contends that defendant
failed to meet its initial burden on the motion.

     As plaintiff correctly notes, Highway Law § 139 (2), which
applies to counties, contains provisions that are similar to Town Law
§ 65-a (1), and it is well established that a county’s local law
containing a notice requirement “must be interpreted in conjunction
with Highway Law § 139 (2) to permit an action against the [c]ounty
based on constructive notice of a dangerous highway condition” (Tanner
W. v County of Onondaga, 225 AD2d 1074, 1074; see Napolitano v Suffolk
County Dept. of Pub. Works, 65 AD3d 676, 677; DeHoust v Aakjar, 290
AD2d 927, 927-928, lv dismissed 98 NY2d 692; see generally Carlino v
                                 -2-                           562
                                                         CA 10-02522

City of Albany, 118 AD2d 928, 929-930, lv denied 68 NY2d 606). The
rationale underlying those cases is that a county’s local law cannot
supersede a general state law (see DeHoust, 290 AD2d at 928; see
generally NY Const, art IX, § 3 [d] [1]; Kamhi v Town of Yorktown, 74
NY2d 423).

     Nevertheless, Municipal Home Rule Law § 10 (1) (ii) (d) (3),
which is also a general state law, specifically permits a town, as
opposed to a county (see § 10 [1] [ii] [b]), to amend or supersede
through its local laws any provision of the Town Law relating to the
property of the town “notwithstanding that such provision is a general
law, unless the legislature expressly shall have prohibited the
adoption of such a local law . . . .” Because the Legislature has not
expressly prohibited defendant from enacting a more restrictive notice
requirement than that contained in Town Law § 65-a (1), defendant was
entitled to do so (see Bacon v Arden, 244 AD2d 940, 940-941; Canzano v
Town of Gates, 85 AD2d 878, 879; see generally Walker v Town of
Hempstead, 190 AD2d 364, 369-370, affd 84 NY2d 360). The notice
provisions of Town Code § 68-2 (A) are thus valid and, contrary to
plaintiff’s contention, defendant was not required to establish that
it lacked constructive notice of the pothole in order to establish its
entitlement to summary judgment dismissing the amended complaint.

     Contrary to plaintiff’s further contention, defendant was not
required to establish that it did not create the dangerous condition
through an affirmative act of negligence in order to establish its
entitlement to summary judgment. There are two recognized exceptions
to the prior written notice rules, i.e., “where the locality created
the defect or hazard through an affirmative act of negligence . . .
and where a ‘special use’ confers a special benefit upon the locality”
(Amabile v City of Buffalo, 93 NY2d 471, 474). Where, as here, there
is a prior written notice provision, a municipal defendant meets its
initial burden by establishing that it did not receive prior written
notice of the allegedly dangerous condition, and the burden then
shifts to the plaintiff to raise a triable issue of fact whether one
of the exceptions applies (see Gold v County of Westchester, 15 AD3d
439, 440). The affirmative negligence exception, relied upon by
plaintiff in this case, is “limited to work by the [locality] that
immediately results in the existence of a dangerous condition”
(Bielecki v City of New York, 14 AD3d 301, 301), and does not apply to
conditions that develop over time, such as the pothole in question
(see Torres v City of New York, 39 AD3d 438; Gold, 15 AD3d at 440).
We thus conclude that plaintiff failed to raise a triable issue of
fact whether the affirmative negligence exception applies.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
