DiSANTO v. TOWN OF ISLIP

Ordered that the order is reversed, on the law, and the complaint and cross claims insofar as asserted against the Town of Islip are reinstated; and it is further,

Ordered that the appellant is awarded one bill of costs payable by the Town of Islip.

The plaintiff was injured in an automobile accident which allegedly occurred as a result of, among other things, the defendant Town of Islip's negligent maintenance of a stop sign which it permitted to become obscured by the foliage of a nearby tree. Contrary to the conclusion of the Supreme Court, "[s]ince the gravamen of the claims against the [Town] was that untrimmed vegetation obstructed a stop sign, thus rendering the sign defective, [Town Law § 65-a (1)] does not apply" (Torres v. Galvin, 189 A.D.2d 870, 871; see, Dishaw v. Central N Y Regional Transp. Auth., 179 A.D.2d 1088; De Francisci v Baron, 97 A.D.2d 453). Therefore, the court erred insofar as it determined that the absence of prior written notice compelled the dismissal of the claims against the Town. Furthermore, the alleged dangerous condition was open and obvious on a public street. We are therefore satisfied that the plaintiff has demonstrated the existence of an issue of fact as to whether or not the Town had constructive notice thereof (see, Harris v Village of E. Hills, 41 N.Y.2d 446).

The appellant's remaining contentions are academic. Miller, J.P., O'Brien, Santucci and Florio, JJ., concur.