Opinion
March 8, 1996
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Supreme Court erred in granting the motion of defendant County of Onondaga (County) for summary judgment dismissing the complaint on the ground that it did not have prior actual or written notice of the defective roadway condition. Local Laws, 1984, No. 1 of Onondaga County provides that no action may be maintained against the County based on a highway defect unless the County Commissioner or Deputy Commissioner of Transportation had prior actual notice of the defective condition or the Clerk of the County Legislature or the Commissioner or Deputy Commissioner of Transportation received written notice of it. The record shows that defendant had neither prior actual notice nor written notice of the alleged defective condition. The local law, however, must be interpreted in conjunction with Highway Law § 139 (2) to permit an action against the County based on constructive notice of a dangerous highway condition ( see, Dalby v County of Saratoga, 206 A.D.2d 722; Bernardo v County of Nassau, 150 A.D.2d 320; Carlino v City of Albany, 118 A.D.2d 928, 929-930, lv denied 68 N.Y.2d 606). A municipality has such constructive notice when the dangerous condition has been "visible and apparent" and has "`existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it'" ( Ferris v County of Suffolk, 174 A.D.2d 70, 75, affd 79 N.Y.2d 1031, rearg denied 80 N.Y.2d 893, quoting Lesser v Manhattan Bronx Surface Tr. Operating Auth., 157 A.D.2d 352, 357). We conclude that the affidavits of plaintiff's expert and a passenger in plaintiff's vehicle at the time of the accident, together with the testimony of County employees and photographs of the intersection, raise a triable issue of fact whether the County had constructive notice of the dangerous condition ( see, Dalby v County of Saratoga, supra, at 723; Giganti v Town of Hempstead, 186 A.D.2d 627, 628). Thus, we modify the order on appeal by denying the County's motion for summary judgment and reinstating the complaint.
We agree, however, with the County that plaintiff's proof failed to establish that the County affirmatively created the defective condition.