Counties Cannot “Opt Out” of Highway Law § 139(2)’s Constructive-Notice Liability, and Must Disprove Both Written and Constructive Notice on Summary Judgment

I. Introduction

Case: Romas v County of Suffolk, 2026 NY Slip Op 02142 (App Div, 2d Dept Apr. 8, 2026).
Parties: William Romas (plaintiff-respondent) vs. County of Suffolk (defendant-appellant).
Posture: Appeal from an order denying the County’s motion for summary judgment dismissing a personal-injury complaint.

The plaintiff alleged that he was injured in a bicycle accident on County Road 51 when his front wheel struck a roadway defect (described as a pothole/failed pavement), causing him to lose control and fall. The County sought dismissal based on lack of prior written notice under Suffolk County Charter § C8-2(A)(2), and argued additionally that it had “opted out” of Highway Law § 139(2)’s constructive-notice route to liability by a Charter provision purporting to supersede that state statute.

The appeal raised two core issues:

  1. Home rule / preemption: May Suffolk County, via Municipal Home Rule Law § 10(1)(ii)(a)(5), enact a local law that eliminates Highway Law § 139(2)’s express constructive-notice basis for suit against a county?
  2. Summary-judgment burden: In a Highway Law § 139(2) case, is it enough for the County to show only lack of prior written notice, shifting to the plaintiff to prove constructive notice?

II. Summary of the Opinion

The Second Department affirmed the denial of summary judgment and announced two decisive holdings:

  • Direct-conflict preemption: Suffolk County Charter § C8-2(A)(2)(iii), insofar as it purports to “supersede” the portion of Highway Law § 139(2) authorizing actions premised on constructive notice, directly conflicts with a general state law and is therefore invalid under the New York Constitution’s home rule limits and Municipal Home Rule Law principles.
  • Movant’s prima facie burden: When moving for summary judgment dismissing a complaint in cases implicating Highway Law § 139(2), the County must establish, prima facie, both lack of prior written notice and lack of constructive notice before the burden shifts to the plaintiff.

Applying those rules, the County established lack of prior written notice, but failed to submit admissible evidence negating constructive notice. Summary judgment was therefore properly denied (without needing to reach the sufficiency of plaintiff’s opposition), though the court also observed plaintiff’s inspection records and expert affidavit could raise a triable issue of constructive notice in any event.

III. Analysis

A. Precedents Cited

1. State preemption and home rule limits

The court grounded its preemption analysis in long-settled doctrine that local governments may legislate only when “not inconsistent” with the Constitution or a “general law,” and that the Legislature may restrict local laws concerning the “presentation, ascertainment and discharge of claims” (NY Const, art IX, § 2[c][i], [ii][5]).

  • Brookhaven Baymen's Assn., Inc. v Town of Southampton and State of New York v Trustees of Freeholders & Commonalty of Town of Southampton were cited for the baseline rule that a municipality cannot enact a local law “in derogation of a general law.”
  • Sunrise Check Cashing & Payroll Servs., Inc. v Town of Hempstead (and its reliance on DJL Rest. Corp. v City of New York) supplied the two familiar routes to preemption: (i) direct conflict with a state statute, or (ii) state “field” occupation. The Second Department chose the first route: Suffolk’s Charter provision “contradicts” Highway Law § 139(2).
  • Eric M. Berman, P.C. v City of New York and Albany Area Bldrs. Assn. v Town of Guilderland were used to frame the “express conflict” test: local and state laws may coexist unless compliance with both is impossible or the local law undermines state policy.
  • Matter of Baldwin Union Free Sch. Dist. v County of Nassau illustrated invalidation where a local law is inconsistent with a state enactment; the court treated Suffolk’s attempted “supersession” of a state-law liability pathway as the same kind of inconsistency.
  • McGrath v Suffolk County and Guthart v Nassau County reinforced that local attempts to alter state-prescribed consequences (there, monetary liability structures) are void when they conflict with general law.
  • The court also cited Belle v Town Bd. of Town of Onondaga, Willow Woods Manufactured Homeowner's Assn., Inc. v R & R Mobile Home Park, Inc., and R & K Gen. Contr. v County of Putnam as additional support for the “conflict invalidates” rule.

2. Highway Law § 139(2): constructive notice is built in

The heart of the opinion is the text of Highway Law § 139(2), which allows a county to require prior written notice by local law, but explicitly preserves liability “in the absence of such notice” where the defect “existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence” (i.e., constructive notice).

  • Holt v County of Tioga was central to the County’s argument, but the court distinguished it sharply: Holt addressed whether a county could enact a prior written notice law under a different version of Highway Law § 139 (before subdivision (2) existed). It did not authorize a county to nullify an express state-law exception created later by the Legislature.
  • Legislative history (Senate-Assembly Mem in Support; Governor’s Approval Mem, Bill Jacket, L 1982, ch 722) was used to show that the Legislature intentionally limited county discretion: prior written notice could be required, but actions would still lie absent notice when the defect should have been discovered and remedied. This history undermined Suffolk’s “opt out” theory.

3. Prior Appellate Division applications of § 139(2) (and summary-judgment burdens)

The court aligned itself with a consistent line of departmental authority treating constructive notice as a mandatory, state-imposed safety valve that local prior written notice laws must be read to include.

  • Napolitano v Suffolk County Dept. of Pub. Works was the doctrinal anchor and the historical trigger for Suffolk’s 2004 Charter amendment. Napolitano held that constructive notice (except snow/ice) is an exception “as a matter of law” regardless of whether the local statute includes it. Romas extends the logic: Suffolk cannot amend its Charter to erase what state law mandates.
  • DeHoust v Aakjar was quoted for the proposition that the Legislature’s inclusion of constructive notice in Highway Law § 139(2) makes the “legislative judgment plain,” and a county’s local law “cannot supersede” that general law.
  • Phillips v County of Nassau (and Bernardo v County of Nassau) showed that even when a local prior written notice law is silent on constructive notice, it must be construed “in accord with Highway Law § 139(2)” to allow recovery based on constructive notice.
  • Hart v City of Buffalo (Fourth Department), relying on Tanner W. v County of Onondaga and discussing Pasternak v County of Chenango and Loughren v County of Ulster, reinforced that constructive notice remains actionable absent prior written notice and that a county moving for summary judgment must negate constructive notice.
  • Gass v County of Rockland reaffirmed within the Second Department that constructive notice is an exception “as a matter of law,” and illustrated that expert proof about duration/visibility of a defect can create fact issues on constructive notice.
  • For the movant’s prima facie burden, the court cited Kenney v County of Nassau, Perkins v County of Tompkins (quoting Pasternak v County of Chenango), and treated Rauschenbach v County of Nassau as consistent in practice: the County there sought to prove lack of constructive notice via inspection testimony, implying it understood that burden.

B. Legal Reasoning

1. Why Suffolk’s Charter “supersession” fails

Suffolk County Charter § C8-2(A)(2)(iii) explicitly states it “shall supersede” “that portion of New York Highway Law § 139(2) which authorizes an action premised upon constructive notice.” The Second Department held this is the textbook case of direct conflict preemption:

  • Highway Law § 139(2) expressly permits suit absent written notice when a defect existed long enough to be discovered and remedied (constructive notice).
  • The Charter provision attempts to remove that state-law permission for Suffolk County alone.
  • Because both cannot be given effect simultaneously, the local law is “inconsistent with” the general law and invalid under home rule limitations.

The opinion also rejected Suffolk’s framing that Municipal Home Rule Law § 10(1)(ii)(a)(5) authorizes it to “opt out.” That statute grants local power only for laws “not inconsistent” with general law. Here, inconsistency was explicit by design.

2. Why the County must negate constructive notice on summary judgment

The County argued that once it proved lack of prior written notice, the plaintiff had the initial burden to prove constructive notice. The Second Department rejected this as incompatible with:

  • The text/structure of Highway Law § 139(2): constructive notice is written into the statute as an alternative basis for maintaining suit.
  • Summary judgment principles: under Alvarez v Prospect Hosp. and Zuckerman v City of New York, the movant must eliminate triable issues of fact in the first instance.
  • Departmental precedent: cases such as Napolitano v Suffolk County Dept. of Pub. Works, Gass v County of Rockland, Hart v City of Buffalo, and Pasternak v County of Chenango consistently impose on the county-movant the prima facie burden to show no prior written notice and no constructive notice.

Only after the county satisfies that prima facie burden does the plaintiff need to raise a triable issue of fact, or invoke the extra-statutory exceptions (affirmative creation or special use) recognized in Amabile v City of Buffalo and Groninger v Village of Mamaroneck.

3. Application to the record

The County’s evidence (records/affidavits/deposition testimony) established no prior written notice or complaints. But the County submitted no admissible proof addressing whether the defect existed long enough to be discovered and remedied—i.e., no competent negation of constructive notice. Under Winegrad v New York Univ. Med. Ctr., that failure ends the motion.

The court nevertheless noted that plaintiff’s proof—inspection records indicating a patch repair inspection weeks earlier and an expert opinion that the defect formed over months/years and would have been visible—could raise a triable issue of constructive notice (as in Gass v County of Rockland).

C. Impact

  • Limits on county “immunity-by-charter” strategies: The decision forecloses Suffolk County’s attempt (and signals to other counties) that local legislation cannot carve out a county-specific exemption from the constructive-notice pathway created by Highway Law § 139(2).
  • Uniform statewide floor for roadway-defect claims: Highway Law § 139(2) operates as a statewide baseline: counties may require prior written notice, but cannot eliminate liability where defects persist long enough to be discoverable with reasonable diligence.
  • Summary-judgment practice shift (or clarification): Counties moving for dismissal must build an evidentiary record on constructive notice (inspection regimes, maintenance logs, witness testimony, timelines). Motions limited to “no written notice” are vulnerable.
  • Litigation incentives: Plaintiffs will focus discovery on duration/visibility of defects and county inspection/repair practices; counties will likely increase documentation to negate constructive notice.

IV. Complex Concepts Simplified

  • Prior written notice statute: A local law requiring that the government receive written notice of a defect (to a specified official) before it can be sued for injuries caused by that defect.
  • Constructive notice: Even without actual notice, the law treats a party as “on notice” if a condition existed for so long, or was so apparent, that it should have been discovered through reasonable inspection and care.
  • Preemption (direct conflict): When a local law contradicts a state “general law,” the local law is invalid to the extent of the conflict.
  • Summary judgment / prima facie burden: The party asking the court to dismiss without trial must first present evidence eliminating factual disputes. If it fails, the motion is denied regardless of the opponent’s papers.
  • Affirmative act of negligence / special use: Two judge-made exceptions (discussed via Amabile v City of Buffalo and Groninger v Village of Mamaroneck) that can allow liability even where written-notice rules would otherwise bar a claim (e.g., the municipality created the hazard, or derived a special benefit from the area’s use).

V. Conclusion

Romas v County of Suffolk establishes (and forcefully clarifies) two rules with broad practical consequence: (1) a county cannot use home rule to “supersede” Highway Law § 139(2)’s express constructive-notice authorization for roadway-defect suits, because such a charter provision directly conflicts with a general state law; and (2) in Highway Law § 139(2) cases, a county moving for summary judgment must, in its prima facie showing, negate both prior written notice and constructive notice. The decision strengthens statewide uniformity in county roadway-defect liability and recalibrates summary-judgment proof requirements toward a fuller evidentiary showing on defect duration and discoverability.