Porter v. Callahan

— Mikoll, J. Appeal from an order of the Supreme Court (Dier, J.), entered March 12, 1986 in Schenectady County, which denied defendant County of Schenectady’s motion for summary judgment dismissing the complaint against it. The issue before us is whether Supreme Court erred in denying defendant County of Schenectady’s motion for summary judgment. Plaintiff is suing for damages sustained on January 3, 1985 by Heather Porter, her daughter, resulting from a one-car accident occurring on Route 159 in the Town of Duanesburg, Schenectady County. Defendant John Callahan was the driver of the vehicle in which Heather was a passenger. The car left the road, crashed through a fence and ended in Mariaville Lake. The complaint alleges, inter alia, that the infant sustained injuries attributable to the creation of a nuisance by the County and due to the County’s negligence. After issue was joined, the County moved for summary judgment dismissing the complaint against it for failure to state a cause of action. Supreme Court denied the motion. There must be a reversal. The basis of plaintiff’s causes of action against the County, as amplified in the bill of particulars, is negligence and the creation of a nuisance by the County in the design, construction, repairing and maintenance [892] of the road and its appurtenances at or near the accident scene. The County’s motion is supported by an affidavit of Harry Mason, the Commissioner of the County’s Department of Engineering Public Works. The affidavit alleges that the accident site is a road owned and controlled by the State. An appended contract existing between the County and the State acknowledges the State’s ownership of the highway. The contract indicates that the County’s responsibility is reserved to removal of snow and ice from the highway. Also appended to the affidavit is Local Laws, 1983, No. 1-83 of the County of Schenectady which requires prior notice of any defective condition of any highway as a condition precedent to any civil action brought against the County. The affidavit states that no notice has been filed in connection with snow or ice removal or any other defect concerning the accident site before the occurrence of the accident. In opposition, plaintiff, by her counsel’s affidavit, states broadly that no notice was required in the instant case because the allegations of negligence rise from the County’s affirmative acts of defective design of certain roads and appurtenances, and these do not require prior notice. This statement is based on two maps which plaintiff’s counsel states support the conclusion that Route 159 was formerly a County-operated highway and that it has not undergone any substantial change in the design or layout since it was in the County’s hands. A review of the maps sheds no illumination on the inception of the road’s design or the history of its ownership, prior or current. The affidavit of plaintiff’s counsel fails to raise evidentiary facts rebutting the defenses raised by the County of lack of notice of defect and lack of control of Route 159. Once these defenses were interposed, supported by documentary proof and the personal knowledge of the affiants, it was incumbent upon plaintiff to rebut those defenses by submission of evidentiary facts to indicate that an issue of fact remains for resolution by trial (see, Indig v Finkelstein, 23 NY2d 728). Bald, conclusory allegations, even if believable, are not enough to defeat summary judgment (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342). Plaintiff presented no proof to put in question whether improper design and construction of Route 159 was attributable to the County, nor did plaintiff supply any proof, based on knowledge, that accumulation of snow and ice for an extended period of time was a cause of the infant’s injuries. This position was first alluded to in the affidavit by plaintiff’s [893] counsel in reply to the County’s motion for summary judgment. Allegations of snow and ice accumulations are not found in either the complaint or plaintiffs bill of particulars. Plaintiffs reliance on CPLR 3212 (f) is unavailing. Plaintiffs statement that facts may exist but cannot now be stated is belied by facts commonly within public knowledge. Documents relating to construction and design of roadways are public documents required to be held by the State. Likewise, information as to weather conditions and snow removal, relevant to the accident, are also public documents available to plaintiff. Plaintiff has thus failed to support any justification for a continuance pursuant to CPLR 3212 (f). Order reversed, on the law, without costs, motion granted and complaint dismissed against defendant County of Schenectady. Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.