Opinion
June 6, 1996
Appeal from the Supreme Court, Westchester County (Barone, J.).
Plaintiff sustained the injuries forming the basis for this action in September 1990, when the front wheel of his bicycle became entrapped within an approximately three-inch wide and three-inch deep gap that extended along the centerline and between the two concrete driving lanes of Pipeline Road in the Town of Greenburgh, Westchester County. In the absence of any claim of compliance with defendant's prior notice law, the sole issue for our consideration is whether plaintiff opposed defendant's summary judgment motion with evidence sufficient to raise a triable issue of fact as to whether defendant created the defective or dangerous condition or had actual or constructive notice of its existence ( see, e.g., Klimek v. Town of Ghent, 114 A.D.2d 614). We answer the question in the negative and accordingly affirm Supreme Court's order dismissing the complaint.
Initially, it is our view that there is no evidence in the record that defendant created the defective or dangerous condition. Even if plaintiff could competently support his speculation that in or about 1980 defendant improperly filled the gap with tar, instead of asphalt, such evidence would not aid his cause. Despite plaintiff's claim that the allegedly negligent repair "created" or "exacerbated" the condition that caused his injuries, evidence that tar was an unsuitable filler material because hot weather and traffic would cause it to "track out" would establish at most that the repair was ineffectual and did not cure the underlying defect, i.e., the gap between the concrete slabs. Photographic evidence submitted by plaintiff establishes that there was little or no tar in the void at the time of his accident, and passive negligence or nonfeasance such as negligent maintenance or repair of a highway will not obviate the need for compliance with a prior written notice law ( see, Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 1032).
Finally, on the evidence before us, including photographs of the roadway as it existed at the time of plaintiff's accident and deposition testimony concerning defendant's allegedly ineffectual repair effort, defendant's policy of inspecting its roads on an annual basis and the fact that it was "not unusual" for defendant's Commissioner of Public Works to travel on Pipeline Road, we are unpersuaded that there exists a triable issue of fact with regard to defendant's actual or constructive notice of the defective or dangerous condition ( see, Ferris v. County of Suffolk, 174 A.D.2d 70; Holt v. County of Tioga, 95 A.D.2d 934, appeal dismissed 60 N.Y.2d 701, lv denied 60 N.Y.2d 560; cf., Klimek v. Town of Ghent, supra; Blake v. City of Albany, 63 A.D.2d 1075, affd 48 N.Y.2d 875).
White, Casey, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.