Opinion
October 4, 1991
Appeal from the Supreme Court, Cattaraugus County, Feeman, Jr., J.
Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiffs, who were injured when their car collided with a school bus at an intersection in the Town of Allegany, commenced this action against the County of Cattaraugus. The court erred in denying the County's motion for summary judgment. It is undisputed that plaintiffs gave no prior written notice of a highway defect involving ice or snow, as required by Local Laws, 1982, No. 3 of the County of Cattaraugus (see, Highway Law § 139). Nor can it be said that the County's failure to sand Route 61 was an act of affirmative negligence, to excuse noncompliance with the notice requirement (see, Piscione v County of Oneida, 159 A.D.2d 982; Powell v Gates-Chili Cent. School Dist., 50 A.D.2d 1079, 1079-1080; cf., Siddon v Fishman Co., 65 A.D.2d 832, lv denied 46 N.Y.2d 714).