                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 3, 2016                    522527
________________________________

ABIGAIL CHANCE et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

COUNTY OF ULSTER,
                    Respondent.
________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                              __________


      Blatchly & Simonson, PC, New Paltz (Bruce D. Blatchly of
counsel), for appellants.

      Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Robert
D. Cook of counsel), for respondent.

                              __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Mott, J.),
entered September 24, 2015 in Ulster County, which granted
defendant's motion for summary judgment dismissing the complaint.

      In December 2013, plaintiffs commenced this action to
recover damages for personal injuries sustained by plaintiff
Abigail Chance when, in June 2013, she fell from her bicycle
while riding alongside State Route 299 on a portion of roadway
maintained by defendant. Plaintiffs alleged that Chance fell as
a result of defendant's improper maintenance of the roadway and
its failure to provide an adequate road shoulder. Following
joinder of issue, defendant moved for summary judgment dismissing
the complaint. Supreme Court granted the motion and dismissed
the complaint. Plaintiffs appeal, and we affirm.
                              -2-                522527

      Where a municipality has enacted a prior written notice
statute, the general rule is "that a plaintiff may not bring a
civil action against [it] for damages as the result of an injury
sustained by reason of a defective street, highway, bridge,
culvert, sidewalk or crosswalk unless such a notice provision is
satisfied" (Smith v Village of Hancock, 25 AD3d 975, 975 [2006];
see Stride v City of Schenectady, 85 AD3d 1409, 1410 [2011];
Crespo v City of Kingston, 80 AD3d 1124, 1124 [2011]; see also
General Municipal Law § 50-e). The notice provided must be
written notice, and evidence of constructive or actual notice is
insufficient (see Palo v Town of Fallsburg, 101 AD3d 1400, 1401
[2012], lv denied 20 NY3d 862 [2013]; Stride v City of
Schenectady, 85 AD3d at 1410; Boice v City of Kingston, 60 AD3d
1140, 1142 [2009]). Nonetheless, an exception to the written
notice requirement applies if defendant affirmatively created the
dangerous condition (see Babenzien v Town of Fenton, 67 AD3d
1236, 1238 [2009]). To satisfy this exception, a defendant's
actions must have "immediately result[ed] in the existence of
[the] dangerous condition" alleged to have caused a plaintiff's
injuries (Yarborough v City of New York, 10 NY3d 726, 728
[2008]). When a defendant establishes that it did not receive
prior written notice of the alleged defect, the burden shifts to
the plaintiff to raise issues of fact as to the applicability of
an exception to the written notice requirement (see Yarborough v
City of New York, 10 NY3d at 728; Guimond v Village of
Keeseville, 113 AD3d 895, 896 [2014]; Stride v City of
Schenectady, 85 AD3d at 1410).1


    1
        Plaintiffs argue that a defendant cannot shift the burden
on such a motion for summary judgment absent proof that no issues
of fact exist as to the application of any exception to the
written notice requirement. We disagree, as such an argument is
contrary to Court of Appeals precedent establishing the
aforementioned general rule as to defendant's initial burden (see
Yarborough v City of New York, 10 NY3d at 728 [2008]).
Otherwise, as plaintiffs did not allege in their pleadings that
defendant affirmatively created the dangerous condition, we need
not consider the hypothetical question regarding the scope of a
defendant's initial burden in an instance in which a plaintiff
has pleaded legal liability based on an exception to the written
                               -3-                522527

      Initially, plaintiffs are incorrect as a matter of law that
the Ulster County Code provision regarding notice does not apply
to a State Route that defendant maintained. The Ulster County
Code provides, in pertinent part, that "[n]o civil action shall
be maintained against [defendant] for damages or injuries to [a]
person . . . sustained in consequence of any road . . . being
defective, out of repair, unsafe, dangerous or obstructed . . .
unless at least 48 hours prior to the occurrence resulting in
such damage or injuries, written notice of the . . . condition of
such road . . . shall have been filed in the office of the Clerk
of the Ulster County Legislature and there was a failure or
neglect to remedy or remove the defect . . . within a reasonable
time after the filing of such notice" (Ulster County Code
§ 258-2; see Town Law § 65-a). The plain language application of
Ulster County Code § 258-2 provides that it applies to defects as
to "any road," which patently includes a State Route maintained
by defendant (see generally Cain v Pappalardo, 225 AD2d 1005,
1007 [1996]; Federoff v Camperlengo, 215 AD2d 806, 807-808
[1995]). Thus, based on defendant's evidentiary submissions
establishing that it did not receive written notice in accordance
with Ulster County Code § 258-2 in regard to the alleged defect,2
the burden shifted to plaintiffs.

      Plaintiffs failed to raise an issue of fact as to
defendant's creation of the dangerous condition through an
affirmative act. Rather than attribute the accident to
defendant's affirmative act, plaintiffs' expert attributed the
accident to defendant's failure to act; he opined that the
dangerous pavement edge drop-off that caused the fall resulted
from a lack of "monitoring and maintenance" of the road by
defendant. Accordingly, even when viewing the evidence in the
light most favorable to plaintiffs, they failed to raise a
triable issue of fact as to an exception to the written notice


notice requirement (compare Breest v Long Island R.R., 140 AD3d
819, 820 [2016]).
     2
        Plaintiffs concede that defendant established that it did
not receive written notice specifically identifying the defect
alleged to have caused the accident.
                              -4-                  522527

requirement (see Yarborough v City of New York, 10 NY3d at 728;
Davis v City of Schenectady, 65 AD3d 743, 745 [2009]; Boice v
City of Kingston, 60 AD3d at 1142). Accordingly, Supreme Court
properly granted defendant's motion for summary judgment
dismissing the complaint. Plaintiffs' remaining contentions are
academic or without merit.

     Garry, Devine, Clark and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
