SWARTZMAN v. COUNTY OF CHAUTAUQUA

Order unanimously reversed on the law without costs and complaint dismissed as against defendant county. Memorandum: Special Term erred in denying the county's motion to dismiss the complaint for failure to state a cause of action. Plaintiffs' failure to plead compliance with the requirement of prior written notice of the existence of snow and ice upon the highway requires dismissal of the complaint (see, Highway Law § 139; Local Laws, 1985, No. 3 of County of Chautauqua; Banta v County of Erie, 134 A.D.2d 839, 840; Powell v Gates-Chili Cent. School Dist., 50 A.D.2d 1079, 1080).