“Repainting as Notice” – Gass v. County of Rockland (2025): Constructive Notice Triggered by Routine Road-Marking Maintenance

1. Introduction

Gass v. County of Rockland, 2025 NY Slip Op 03796, decided by the Appellate Division, Second Department, revisits the perennial tension between a municipality’s prior written notice defense and the doctrine of constructive notice. Bicyclist Alan Gass was injured after striking a pothole that had formed around two gas-utility covers on Western Highway, Rockland County. He sued (i) the County of Rockland and its Highway Department (“County defendants”) and (ii) Orange & Rockland Utilities, Inc. (“O&R”), the owner of the utility covers. The Supreme Court denied both defendants’ motions for summary judgment; the Appellate Division affirmed.

Core Issue: Whether, in the absence of prior written notice, (a) the County could still be liable under the “constructive notice” exception codified in Highway Law §139(2) and Rockland Cty. Code §327-1, and (b) O&R, as a utility making special use of the highway, owed—and breached—a duty to maintain the surrounding roadway.

2. Summary of the Judgment

• Prior Written Notice: No such notice existed. Yet, the Court held that the plaintiff raised a triable issue as to constructive notice because (1) the alleged defect was visible and long-standing, and (2) the County annually repainted the word “SCHOOL” directly over the defect, implying specific knowledge or an opportunity to discover it.
• Utility Duty: O&R’s status as a private entity enjoying a “special use” of the highway imposed a duty to keep its valves/covers and the surrounding pavement safe. Annual on-site testing and the expert’s opinion that the defect pre-dated the accident for “several years” created triable issues regarding O&R’s constructive notice.
• Disposition: Both motions for summary judgment were properly denied; the plaintiff’s cross-appeal was dismissed as non-aggrieved; costs awarded to the plaintiff.

3. Analysis

3.1 Precedents Cited

• Lopes v. Rostad, 45 NY2d 617 (1978) – Established municipalities’ non-delegable duty to maintain roads in a reasonably safe condition, regardless of contractor involvement.
• Napolitano v. Suffolk County Dept. of Pub. Works, 65 AD3d 676 (2d Dep’t 2009) – Clarified that constructive notice is an automatic statutory exception to prior written notice under Highway Law §139(2).
• Gordon v. American Museum of Natural History, 67 NY2d 836 (1986) – Leading authority on constructive notice standards (visible, apparent, and of sufficient duration).
• Romano v. County of Monroe, 149 AD2d 952 (4th Dep’t 1989) & D’Ambrosio v. City of New York, 55 NY2d 454 (1982) – Defined utilities’ “special use” duty for installations in public ways.
• Morzello v. Village of Briarcliff Manor, 260 AD2d 611 (2d Dep’t 1999) – Routine generalized inspections are insufficient, standing alone, to establish absence of constructive notice.

The Appellate Division weaved these authorities together, emphasizing that Highway Law §139(2) overrides local notice provisions when constructive notice can be shown, and reaffirming utilities’ vigilance obligations toward hazards emanating from their structures.

3.2 Legal Reasoning

1. Statutory Framework
   Highway Law §139(2) allows counties to shield themselves via prior written notice ordinances but, by statute, expressly carves out two exceptions: (i) snow/ice conditions and (ii) constructive notice for all other defects. Rockland Cty. Code §327-1 mirrors §139(2) and likewise preserves the constructive-notice escape hatch.
2. Constructive Notice Analysis
   The Court reiterated the two-prong Gordon test—visibility/apparency and duration. It found:
   • The pothole encircled prominent utility covers and was positioned beneath painted lettering.
   • The County’s yearly repainting of “SCHOOL” proved that Highway personnel had to inspect the precise spot repeatedly. Hence, the defect “should have been discovered.”
   • Expert testimony dated the defect to “several years” pre-accident.
   Collectively, these facts raised a jury issue as to constructive notice, defeating the County’s motion.
3. Utility’s Special Use Duty
   Relying on Romano and D’Ambrosio, the Court reaffirmed that utilities are not mere bystanders. Because O&R enjoys the privilege of embedding its infrastructure in the public way, it must ensure both its hardware and the adjoining pavement are safe. O&R’s annual visits and the defect’s longevity mirrored the reasoning applied to the County: a jury could infer constructive notice.
4. Summary-Judgment Standard Applied
   Both defendants met their initial burden by demonstrating the absence of prior written notice. However, once that threshold showing was made, the burden shifted to the plaintiff to invoke an exception. The plaintiff did so by presenting evidence raising genuine issues of material fact regarding constructive notice. Under CPLR 3212, the existence of such factual disputes barred summary judgment.

3.3 Impact on Future Litigation and Municipal Practice

• “Repainting as Notice” Doctrine: Routine, location-specific maintenance (e.g., repainting road markings) can itself supply the factual predicate for constructive notice. Municipalities can no longer rely on generic inspection schedules if their own targeted upkeep brings employees into direct proximity with a defect.
• Utility Exposure: The judgment underscores that a utility’s periodic testing or maintenance visits may create constructive notice of hazards forming in the surrounding pavement, expanding potential liability even where the defect ostensibly lies outside the hardware itself.
• Evidence Strategy: Plaintiffs will likely employ (a) maintenance log discovery and (b) expert dating of pavement defects to defeat municipal motions. Conversely, municipalities must meticulously document inspections, findings, and remedial efforts to preserve their notice defenses.
• Legislative Considerations: Counties might reassess the breadth of local notice statutes, but they cannot override Highway Law §139(2)’s constructive-notice carve-out. The decision thus entrenches the statutory hierarchy and limits local legislative experimentation.

4. Complex Concepts Simplified

• Prior Written Notice: A formal letter or report to the municipality identifying a specific roadway defect before an accident occurs. Without it, injured parties often cannot sue—unless an exception applies.
• Constructive Notice: The law treats a defendant as if it knew about a defect when the condition was so open, obvious, and long-standing that reasonable care would have discovered it.
• Non-Delegable Duty: A responsibility that the law forbids a party from passing to another. Here, counties cannot delegate road safety to contractors or utilities.
• Special Use Doctrine: When a private entity benefits from placing equipment in public space, it assumes liability for any danger the installation creates or exacerbates.
• Summary Judgment: A procedural mechanism allowing courts to resolve a case without trial when no genuine factual disputes exist. If questions of fact remain, the motion must be denied.

5. Conclusion

Gass v. County of Rockland crystallizes an important nuance in New York roadway-liability jurisprudence: hands-on, site-specific municipal maintenance—such as annual repainting—may itself establish constructive notice of latent defects, neutralizing the prior written notice shield. At the same time, the decision reiterates utilities’ affirmative duty to safeguard both their equipment and surrounding pavement. Going forward, municipalities and utilities must adopt rigorous, documented inspection regimes and promptly correct hazards that repeat maintenance tasks bring to light. Plaintiffs, in turn, gain a potent evidentiary pathway to trial through the “repainting as notice” logic endorsed by the Second Department.