Monopoli v. County of Nassau , 738 N.Y.S.2d 607 ( 2002 )

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated September 25, 2000, as granted that branch of the cross motion of the defendant County of Nassau which was for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that “[a] municipality which has enacted appropriate legislation may not be subject to liability for personal injuries resulting from a defective sidewalk unless it has received actual written notice of the dangerous condition” (Caramanica v City of New Rochelle, 268 AD2d 496, 497; see also, Amabile v City of Buffalo, 93 NY2d 471). However, if the plaintiff can demonstrate that the municipality affirmatively created or caused the defect, the prior notice requirement can be obviated (see, Sloan v Village of Hempstead, 223 AD2d 632; Strauss v Town of Oyster Bay, 201 AD2d 553). Here, the County of Nassau made a prima facie showing of its entitlement to summary judgment by submitting an affidavit to the effect that the County had no prior written notice of the existence of a tree stump on the subject sidewalk, as was required by section 12-4.0 (e) of the Nassau County Administrative Code. The plaintiffs failed to demonstrate the existence of a triable issue of fact with respect to their claim that the County affirmatively created the defect. The testimony of the eyewitness to the accident that he also saw two men, riding on a blue truck with an emblem of a lion, whom he believed to have been from the County of Nassau, cut the tree down a month before the accident was speculative and insufficient to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557; Palkovic v Town of Brookhaven, 166 AD2d 566). Friedmann, Adams and Cozier, JJ., concur.