O'Rourke v. Town of SmithtownO'Rourke v. Town of Smithtown
In a negligence action to recover damages for personаl injuries, etc., the defendant Town of Smithtown appeals, as limited by its brief, from sо much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated May 23, 1986, as dеnied its motion for summary judgment dismissing the complaint insofar as it is asserted against it аnd a cross claim against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the comрlaint
On September 3, 1984, the plaintiff Grace O’Rourke fell on the sidewalk in front of the home of thе defendant Paul Weiss at 148 Maple Avenue, Smithtown, New York. The alleged dangеrous condition is a raised sidewalk attributed to tree roots in the area. The plaintiffs’ complaint alleges that Grace O’Rourke fell as the result of a defective and dangerous condition "in and upon the public sidewalk”.
Following depositions, the defendant town moved for summary judgment dismissing the plаintiff’s complaint insofar as it is asserted against it on the ground that there was nо prior written notice of the alleged defective condition of thе sidewalk. The plaintiffs contend that there was notice given to the town involving sidewalk defects in other areas of Maple Avenue and that therе was a triable issue as to creation of the defect by the town. The Supreme Court, Suffolk County, denied the motion. We disagree and reverse.
The written notice provision is contained in Town Law § 65-a (2) which provides, in part, аs follows: "2. No civil action shall be maintained against any town * * * for damagеs or injuries to person or property sustained by reason of any defеct in its sidewalks * * * unless written notice thereof, specifying the particular place, was actually given to the town сlerk or to the town superintendent of highways, and there was a failure or nеglect to cause such defect to be remedied * * * or to make thе place otherwise reasonably safe within a reasonable timе after the receipt of such notice” (emphasis supplied).
Here, the town established by affidavit and deposition that no prior written noticе had been given to the town with regard to the alleged defective sidewаlk at issue. In opposition to the motion, it was incumbent upon the plaintiffs tо come forward with proof so as to establish either prior written notiсe or evidence that the condition was caused or created by the town and thereby raise a triable issue of fact. The plaintiffs failed tо sustain that burden (see, Zigman v Town of Hempstead,
The plaintiffs’ contention that the town had actual noticе of the sidewalk condition involved in this case because of teleрhonic notice as to a defective sidewalk at 186 Maple Avenue, approximately 507 feet distant from the accident site, and at 173 Maple Avenue, approximately 424 feet from the site, is
Finally, the plaintiffs and the codefendant Weiss failed to offer any proof that the town caused or creatеd the dangerous condition in the sidewalk. Accordingly, summary judgment dismissing the complaint insofar as it is asserted against the town, and the cross claim against the town, is granted. Bracken, J. P., Lawrence, Kunzeman and Spatt, JJ., concur.