Opinion
2002-04093
Argued May 13, 2003.
August 25, 2003.
In two related actions, inter alia, to recover damages for personal injuries and wrongful death, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), entered March 19, 2002, as denied its motion for summary judgment dismissing the complaints in both actions insofar as asserted against it.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (David B. Goldin and Mary Elisabeth Ostermann of counsel), for appellant.
Richard J. Katz (DiJoseph Portegello, P.C., New York, N.Y. [Arnold E. DiJoseph III of counsel]), for plaintiffs-respondents Khema Goldburt and Alla Goldburt.
Before: A. GAIL PRUDENTI, P.J., DAVID S. RITTER, LEO F. McGINITY, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaints are dismissed insofar as asserted against the appellant, and the actions against the remaining defendants are severed.
The Supreme Court erred in denying the motion of the County of Nassau for summary judgment dismissing the complaints in the two related actions insofar as asserted against it. The County made a prima facie showing of entitlement to judgment as a matter of law by submitting affidavits to the effect that it had no prior written notice of the presence of the tree limb which obstructed the County road, as required by the County's administrative code ( see Monopoli v. County of Nassau, 292 A.D.2d 356) . In opposition to the County's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact with respect to whether the County created the allegedly defective condition. The County's alleged negligence in planting the tree from which the limb fell, and alleged failure to maintain the tree constituted nonfeasance, not affirmative negligence ( see Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917; Michela v. County of Nassau, 176 A.D.2d 707; Zizzo v. City of New York, 176 A.D.2d 722; Zash v. County of Nassau, 171 A.D.2d 743).
While liability may be imposed on a county, even in the absence of prior written notice, for dangerous highway conditions of which the county had constructive notice ( see Highway Law § 139; Bernardo v. County of Nassau, 150 A.D.2d 320), there is no evidence that the tree limb was present on the road for a sufficient length of time prior to the accident to permit the County's employees to discover and remedy the dangerous condition ( cf. Tanner W. v. County of Onondaga, 225 A.D.2d 1074).
The plaintiffs' remaining contention is without merit.
PRUDENTI, P.J., RITTER, McGINITY and COZIER, JJ., concur.