Opinion
November 16, 1992
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the complaint is dismissed.
Town Law § 65-a (1) provides that no civil action may be maintained against any town for injuries to persons sustained as a consequence of the existence of snow or ice upon a highway owned by the town unless prior written notice thereof, specifying the place, was actually given to the town clerk or town superintendent of highways and there was a failure or neglect to make the place reasonably safe within a reasonable amount of time after receipt of such notice. Actual or constructive notice cannot substitute for written notice where, as here, the condition of the highway involves snow or ice (see, Piscione v County of Oneida, 159 A.D.2d 982).
The defendant Town established through the sworn deposition testimony of its employee that a search of its records had indicated that no such prior written notice was given. In opposition to the Town's motion for summary judgment, it then became incumbent upon the plaintiffs to establish either prior written notice or evidence that the condition was caused or created by the Town in order to create a triable issue of fact (see, Kaempf v Town of Hempstead, 170 A.D.2d 652; Du Pont v Town of Horseheads, 163 A.D.2d 643; Mogil v Town of Hempstead, 152 A.D.2d 687; Englehardt v Town of Hempstead, 141 A.D.2d 601; O'Rourke v Town of Smithtown, 129 A.D.2d 570; Rodriguez v County of Suffolk, 123 A.D.2d 754). The plaintiffs failed to sustain this burden and summary judgment should have been granted to the Town. Bracken, J.P., Lawrence, Miller, Copertino and Santucci, JJ., concur.