Carey v. Massaro

—In an action to recover damages for personal injures, etc., the defendant Town of Hempstead appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), dated March 4, 1999, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is affirmed, with costs. It is undisputed that the Town of Hempstead did not have prior written notice of the hazardous condition alleged by the plaintiffs to have caused the instant collision (see, Town of Hempstead Code § 6-1). Nevertheless, the Supreme Court properly denied the Town’s motion for summary judgment as the plaintiffs successfully demonstrated the existence of an issue of fact as to whether the Town created the condition (see, Doherty v Town of Orangetown, 221 AD2d 310; Humes v Town of Hempstead, 166 AD2d 503). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.