Horan v. Christ Episcopal Church

May 28, 1996
Versions:227 A.D.2d 592
643 N.Y.S.2d 202
1996 N.Y. App. Div. LEXIS 6082

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered May 10, 1995, which, upon an order granting the motion of the defendant Village of Babylon for summary judgment dismissing the complaint insofar as asserted against it, dismissed the complaint insofar as asserted against it. The plaintiffs’ notice of appeal from the order dated April 5, 1995, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

By establishing that it never received prior written notice of the allegedly defective sidewalk, the defendant Village of Babylon demonstrated its prima facie entitlement to judgment as a matter of law (see, Village Law § 6-628; Monteleone v Incorporated Vil. of Floral Park, 143 AD2d 647, affd 74 NY2d 917; Mendes v Whitney-Floral Realty Corp., 216 AD2d 540). Contrary to the plaintiffs’ contentions, there is no evidence that the Village affirmatively created the defective condition (see, Monteleone v Incorporated Vil. of Floral Park, supra). Therefore, the court correctly dismissed the complaint insofar as asserted against the defendant Village of Babylon. Balletta, J. P., Miller, Sullivan and Copertino, JJ., concur.