Opinion
2012-12-26
Gary MELLOR, et al., appellants, v. VILLAGE OF ELMSFORD, New York, respondent.
Rosenblatt & McGarrity, LLP (Alexander J. Wulwick, New York, N.Y., of counsel), for appellants. Thomas Moore, White Plains, N.Y. (Andrea G. Sawyers and Dominic P. Zafonte of counsel), for respondent.
Rosenblatt & McGarrity, LLP (Alexander J. Wulwick, New York, N.Y., of counsel), for appellants. Thomas Moore, White Plains, N.Y. (Andrea G. Sawyers and Dominic P. Zafonte of counsel), for respondent.
RANDALL T. ENG, P.J., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Walker, J.), entered January 10, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The injured plaintiff fell as he stepped off a sidewalk into a roadway and tripped over an allegedly defective curb. The prior written notice requirement of Village Law § 6–628 was applicable to the curb ( see Krausch v. Incorporated Vil. of Shoreham, 87 A.D.3d 715, 928 N.Y.S.2d 769;Dailey v. Village of Nyack, 78 A.D.3d 882, 910 N.Y.S.2d 681;Zigman v. Town of Hempstead, 120 A.D.2d 520, 501 N.Y.S.2d 718;Skelly v. Village of Port Chester, 6 A.D.2d 717, 174 N.Y.S.2d 562). On its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law on the ground that it did not receive prior written notice of the alleged defect. In opposition, the plaintiffs failed to raise a triable issue of fact ( see James v. City of New Rochelle, 282 A.D.2d 503, 722 N.Y.S.2d 772).
Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted.