Summary
In Anderson, the Appellate Division, Second Department, affirmed the determination of Justice Molia of this court which, noting the Amabile decision, dismissed plaintiff's claim for lack of compliance with a prior written notification requirement notwithstanding "verbal notice to and subsequent inspection by the Town of the subject sidewalk together with the Town's designation of said sidewalk as `hazardous"' (see Justice Molia's decision and order dated September 20, 2001).
Summary of this case from Berner v. Town of HuntingtonOpinion
01-08571
February 5, 2002
March 11, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County, dated September 20, 2001 (Molia, J.), which denied their motion for summary judgment dismissing the defendant's affirmative defense of lack of prior written notice and granted the defendant's cross motion for summary judgment dismissing the complaint.
Sawyer, Davis, Halpern Demetri, Garden City, N.Y. (James Sawyer of counsel), for appellants.
Patrick F. Adams, P.C., Bay Shore, N.Y. (Vito A. Cardo III and Charles Adams of counsel), for respondent.
MYRIAM J. ALTMAN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, and STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with costs.
A condition precedent to maintaining an action against the Town of Smithtown arising from a sidewalk defect is that written notice be filed with the Town Clerk at least 15 days before the accident (see, Smithtown Code §§ 245-13, 245-14). No such written notice was given here. Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment dismissing the defendant's affirmative defense of lack of prior written notice and granted the defendant's cross motion for summary judgment dismissing the complaint.