The defendants County of Ulster and defendant Town of Rosendale have each moved, pursuant to CPLR 3212, for summary judgment dismissing the plaintiff's complaint and any cross-claims against these defendants. In this action for money damages, the plaintiff alleges that, as a result of a single car accident that occurred on December 8, 2010 on Creek Locks Road in the Town of Rosendale, Ulster County, New York, she sustained numerous severe injuries including a traumatic brain injury. The plaintiff alleges that the Town of Rosendale and the County of Ulster were negligent in permitting said road, a designated County road, to be and remain in a dangerous and defective condition, which allegedly caused the plaintiff's accident. The defendant County of Ulster asserts in its motion for summary judgment, inter alia, that it was not provided sufficient prior written notice of the alleged dangerous condition on the subject road, and, in any event, that the plaintiff cannot prove that any roadway conditions that existed on December 8, 2010 were the proximate cause of the plaintiff's accident. In its motion, the defendant Town of Rosendale asserts that, although the plaintiff may have a cause of action against the other defendants for damages on account of personal injuries sustained in the aforesaid accident, no such cause of action lies against said Town of Rosendale since it did not own, control or maintain the subject road and, therefore, owed no duty to the plaintiff and, in any event, because there was no prior written notice of any alleged defective condition on the roadway where the accident occurred. The plaintiffs oppose the motions and the remaining co-defendant did not respond to the motion.

It is well settled that a proponent of a summary judgment motion must make a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see, Alvarez v. Prospect Hosp., 68 NY2d 320). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see, Giuffrida v. Citibank Corp., 100 NY2d 72). Conclusory allegations, even if believable, are insufficient to defeat a summary judgment motion (see, S.J. Capelin Assocs. Inc. v. Globe Mfg. Corp., 34 NY2d 338).

"When deciding a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party and accord that party the benefit of every reasonable inference for the record proof, without making any credibility determinations." (Black v Kohl's Department Stores, Inc., 80 AD3d 958 [3rd Dept 2011]). The Court's duty is to determine whether an issue of fact exists, not resolve it (see, Barr v. County of Albany, 50 NY2d 247). Once the moving party has established its right to summary judgment, it is incumbent upon the non-moving party to lay bare its proof and demonstrate that an issue of fact remains (see, Alvarez v. Prospect Hosp., supra).

Defendant Town of Rosendale's Motion for Summary Judgment

In support of its motion, the defendant Town of Rosendale submits copies of: (1) the pleadings; (2) the testimony of the plaintiff Jessica Wallner taken pursuant to Section 50-h of the General Municipal Law; (3) photographs depicting the condition of the driveway of defendant Razwaan M. Arif on the day of the accident; (4) the deposition testimony of John Kouhout, Field Operations Manager for Ulster County Department of Public Works (hereinafter "DPW"); (5) the deposition testimony of Susan Colchamiro; (6) the affidavit of Carl Hornbeck, Superintendent for [*2]the Town of Rosendale's Highway Department; (7) the deposition testimony of John Perkins, Sr., employee of the Ulster County DPW; (8) the deposition testimony of John Bryan Petruski, Section Supervisor for Ulster County DPW; (9) the deposition testimony of Bryant Arms, Code Enforcement Officer for the Town of Rosendale and, (10) Town of Rosendale's "Notice of Violation" and Town of Rosendale's "Passed Inspection" letters.

The Town of Rosendale argues that the County owns and controls Creek Locks Road and this includes its ditches, culverts and the bottom portion of Arif's driveway within the county's right of way (Defendant's Exhibit "I"). The Town further asserts that since it had no duty to maintain the County's road, there is no legal duty to the plaintiff (Hill v Town of Reading, 18 AD3d 913 [3rd Dept 2005]). Here, the defendant Town suggests that its only involvement was to investigate the Arif property as to the cause of the water problem onto the subject roadway over a year before the accident, between September 18, 2009 and November 4, 2009, upon request of the County. Said investigation resulted in the town issuing two "Notices of Violation" to property owner Arif and subsequently issuing two "Passed Inspection" letters. Mr. Arm's deposition testimony states that he believed that after the Town's investigation was completed, the County would directly contact the property owner, Mr. Arif, to try and remedy the situation creating the water flow problem from said property.

In opposition, the plaintiff agrees that Creek Locks Road was owned, controlled and maintained by the County and generally the Town would not owe her a duty. However, here, the plaintiff argues that the Town, through its own significant actions performed at the Arif property, assumed an affirmative duty and then breached that duty by its own improper actions. The plaintiff submits, in opposition: (1) a copy of the Police Accident Report; (2) the affidavit of Nicholas Bellizi, a licensed professional engineer in the State of New York, New Jersey and Pennsylvania; (3) copies of pictures depicting the scene of the accident; (4) a copy of the deposition testimony of Susan Colchamiro; (5) a copy of the Town's "Notice of Violation", dated September 18, 2009; (6) a copy of the Town's supplemental "Notice of Violation", dated September 18, 2009; (7) a copy of the Town's "Passed Inspection" letter dated October 19, 2009; (8) a copy of the Town's "Passed Inspection" letter dated November 4, 2009.

Upon review of the submissions, the Court finds that there remains an issue of material fact as to whether the Town undertook an affirmative duty to monitor and remedy the dangerous condition on Creek Locks Road in its attempt to correct the water flow problem on the Arif property and, thereafter breached that duty through its actions. The submissions clearly establish that the Town responded to numerous complaints about the water flow problem from the Arif property onto Creek Locks Road (Defendant's Exhibit "F", "G" and "I"). The deposition testimony of Bryant Arms, Code Enforcement Officer for the Town of Rosendale, stated that the Town and the County worked together [emphasis added] in an attempt to resolve the water flow problem coming from the Arif property onto Creek Locks Road (Defendant's Exhibit "L" at p. 35, l. 17-24, p. 36. l. 1-9). Although it was ultimately the County that took corrective action to alleviate the water flow onto Creek Locks Road, it appears from the submissions that the Town was the only entity with authority to ensure that the property owner correct the source creating the water flow problem. Additionally, the submissions establish that the Town took action to enforce compliance by the property owner to correct the problem by issuing Notices of Violation of the Town of Rosendale's Code of Ordinances and the Uniform Building Codes of New York State, specifically, citing a violation of [*3]PM302.2 Grading and drainage in that all premises be graded and maintained to prevent the erosion of soil and to prevent the accumulation of stagnant water thereon, or within any structure located thereon. While the Town subsequently inspected the property for compliance and issued "Passed Inspection" letters, the submissions also indicate that the condition that gave rise to the violations was never corrected. Therefore, the nature of the duties or obligations that the Town may or may not have assumed as a result of their affirmative representations and/or actions is at least a question of fact for the jury to determine.

Defendant Ulster County's Motion for Summary Judgment

In support of its motion, the defendant County of Ulster submits, inter alia, copies of: (1) the pleadings; (2) the testimony of the plaintiff Jessica Wallner taken pursuant to Section 50-h of the General Municipal Law; (3) the deposition testimony of said plaintiff; (4) the deposition testimony of John Perkins, employee for the Ulster County of DPW; (5) the deposition testimony of John Petruski, Section Supervisor for Ulster County DPW; (6) the deposition testimony of John Kouhout, Field Operations Manager for Ulster County DPW; (7) the deposition testimony of Thomas McLaughlin, Construction Equipment Operator for Ulster County DPW; (8) the deposition testimony of Susan Colchamiro; (9) a copy of Section 258-2 of the Ulster County Code; (10) the affidavit of Nicholas Bellizi, a licensed professional engineer in the State of New York, New Jersey and Pennsylvania; (11) the affidavit of Victoria Fabella, Clerk for the Ulster County Legislature; (12) photographs depicting the scene and, (13) copies of MV-104A reports from 2004-2011 that occurred at the scene in question.

It is well settled that a municipality which has enacted a prior written notice statute cannot be subject to liability for personal injuries unless it received prior written notice of the dangerous condition (see Amabile v City of Buffalo, 93 NY2d 471). The courts have recognized only two exceptions to the statutory rule requiring prior written notice: where the locality created the defect or hazzard through an affirmative act of negligence or where there is a special use that confers a special benefit upon the locality (Amabile v City of Buffalo, 93 NY2d 471, supra). Here, the defendant County of Ulster argues that it had enacted a "prior notice" statute in Section 258-2 of the Ulster County Code (Defendant's Exhibit "BB") that required the plaintiff to provide written notice of the icy condition of the subject road. Furthermore, the affidavit of Victoria Fabella, Clerk for the Ulster County Legislature establishes that a search of the County's written files was conducted as to said roadway at issue (Defendant's Exhibit "CC"). Ms. Fabella asserted that the search resulted in determining that the defendant County of Ulster received no prior written notice of the plaintiff's alleged defective conditions on the roadway in question as contained in her Notice of Claim, i.e. ice had formed due to weather conditions from water which had been deposited on the road's surface from runoff at the driveway located at 671 Creeks Lock Road in the Town of Rosendale (Defendant's Exhibit "CC"). Therefore, the defendant County of Ulster argues that its motion for summary judgment dismissing the claims should be granted.

In opposition to the motion, the plaintiff claims that it was water flowing across Creek Locks Road that caused her accident, not ice. The plaintiff further asserts that although there was no written notice, there is a "constructive notice exception" found in Highway Law §139(2) as follows:

Notwithstanding the provisions of subdivision one of this section, a county may, by local law duly enacted, provide that no civil action shall be maintained against such county for damages or injuries [*4]to person or property sustained by reason of any highway, bridge, or culvert being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition was actually given to the clerk of the governing body of such county or the county highway superintendent; and that there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of, or in the absence of such notice, unless such defective condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence [emphasis added]; but no such action shall be maintained for damages or injuries to person or property sustained solely in consequence of the existence of snow and ice upon any highway, bridge or culvert, unless written notice thereof, specifying the particular place, was actually given to the clerk of the governing body of a county or county highway superintendent and there was a failure or neglect to cause such snow or ice to be removed, or to make the place otherwise reasonably safe within a reasonable time after the receipt of such notice (Highway Law §139[2]) .

Additionally, the plaintiff submits, inter alia, in opposition to the motion; (1) a copy of the Bill of Particulars; (2) a copy of the Police Accident Report; (3) a copy of County Request Summary Report, dated September 14, 2009; (4) a copy of Town's "Notice of Violation", dated September 18, 2009; (5) a copy of Town's supplemental "Notice of Violation", dated September 18, 2009; (6) a copy of Town's " Passed Inspection" letter dated October 19, 2009; (7) a copy of Town's "Notice of Violation", dated November 4, 2009; (8) a copy of the Town's "Passed Inspection" letter dated November 4, 2009; (9) the deposition testimony of John Kouhout, Field Operations Manager for Ulster County DPW; (10) the affidavit of Nicholas Bellizi, a licensed professional engineer in the State of New York, New Jersey and Pennsylvania and, (11) the deposition testimony of Bryant Arms, Code Enforcement Officer for the Town of Rosendale.

The Court's review of the submissions establish that the aforesaid "constructive notice" exception applies as against the defendant County of Ulster. Although, the Defendant County of Ulster asserts that it had no notice of ice on the roadway at the subject location of the accident, the plaintiff has alleged in her Bill of Particulars that the County was negligent in permitting Creek Locks Road, a County Road, to be in and remain in a dangerous and defective condition which caused the plaintiff's accident (Defendant's Exhibit "D"). The deposition testimony of Susan Colchamiro stated that she had been complaining to the Town of Rosendale about the problem of water running onto the subject roadway beginning around September of 2008 (Plaintiff's Exhibit "D"a t p. 49. l. 7-12). She further testified that the water flow condition that she had complained about existed for over two years after she made her initial complaint and still existed on the date of the plaintiff's accident (Plaintiff's Exhibit "D"a t p. 50. l. 2-5). A review of the County's documents refers to a complaint made by Matthew Colchamiro, Ms. Colchaminro's husband, on September 14, 2009 and indicates that the subject area needed to be ditched as water was coming onto his property (Plaintiff's Exhibit "F). The deposition testimony of numerous Ulster County DPW employees show that the County made several attempts to correct the water flow problem by clearing ditches and drains and, performed grading on the bottom of the driveway of the Arif property. The documents provided by the Town of Rosendale also establish that this juncture of Creek Lock Road had a problem with water flowing across the roadway (Plaintiff's Exhibits "G", "H", "I", "J", "K" and "L"). Furthermore, the deposition testimony of Bryant Arms, Code Enforcement Officer for the [*5]Town of Rosendale, indicated that from late 2008 until early 2010, the County of Ulster had been made aware of water running across the roadway and said water was creating a problem (Defendant' Exhibit "L" at p.35, l.17-24). Mr. Arms further stated that he had more than one telephone conversation with County employees regarding this situation in an attempt to rectify the problem (Defendant' Exhibit "L" at p.37, l.1-2). Furthermore, the deposition testimony of Bryan Petruskia, Section Supervisor for the County of Ulster, states that the subject location was known to him to be a trouble spot "because of the pot hole and the water coming down the out of the driveway" (Defendant's Exhibit "M"at p. 13, l. 18-24). The deposition testimony of Wayne Smith, an equipment operator for the Ulster County DPW also stated that the water flow was constantly coming out of the driveway and onto the subject roadway (Defendant's Exhibit "P" at p.30, l. 14-18). Additionally, several of the photographs submitted depicting the scene of the accident show portions of the roadway to be wet with what appears to be water flowing across the roadway (Defendant's Exhibit "CC"). Moreover, the affidavit of the plaintiff's expert witness Nicholas Bellizi, a licensed professional engineer in the State of New York, New Jersey and Pennsylvania, opines that the subject accident was caused and created by the improper, unsafe, inadequate and incomplete drainage of water from the property located at 671 Creek Locks Road onto and across the travel lanes of Creek Locks Road creating a dangerous condition (Plaintiff's Exhibit "U"). Clearly, the County's attempts to correct this situation establishes that it was aware that the water flow coming from Arif's property was creating a problem on Creek Locks Road. Therefore, the submissions create triable issues of fact as to whether the County's efforts to remedy the hazardous water conditions at the subject location indicated they exercised reasonable care and if such unremedied conditions caused the plaintiff's accident.

Subsequently, after reviewing all the evidence presented in the light most favorable to the plaintiff, as non-moving party (see Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997]), the Court finds that there are material issues of fact that require a trial for resolution as to these moving defendants (see Zuckerman v. New York City Transit Auth, supra). Accordingly, the defendant County of Ulster's and the Town of Rosendale's motion for summary judgment, dismissing the complaint against them must be denied. The Court has reviewed any remaining contentions and find them to be either without merit or unnecessary to reach.

Therefore, it is

ORDERED that the County of Ulster's motion for summary judgment pursuant to CPLR § 3212 is hereby denied, and it is further;

ORDERED that the Town of Rosendale's motion for summary judgment pursuant to CPLR § 3212 is hereby denied.

This shall constitute the decision of the Court. The original decision and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this decision shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.

SO ORDERED!

Dated: Kingston, New York [*6]

June 14, 2013

ENTER,

______________________________

JAMES P. GILPATRIC, J.S.C.

Papers considered:

1.)Notice of Motion for Summary Judgment, dated February 8, 2013;

2.)Affirmation of Michael P. Bersak, Esq., dated February 8, 2013, with annexed exhibits;

3.)Affirmation in Opposition of Terrence E. McCartney, Esq. dated March 6, 2013, with annexed exhibits;

4.)Reply Affirmation of Michael P. Bersak, Esq. dated March 18, 2013, with annexed exhibits;

5.)Notice of Motion for Summary Judgment, dated April 25, 2013;

6.)Affidavit of Michael T. Cook, Esq., dated April 25, 2013, with annexed exhibits;

7.)Affirmation in Opposition of Terrence E. McCartney, Esq. dated May 9, 2013, with annexed exhibits;

8.)Plaintiff's Memorandum of Law by Terrence E. McCartney, Esq. dated May 9, 2013;

9.)Reply Affidavit of Michael T. Cook, Esq., dated May 16, 2013.