Opinion
2001-00770
Submitted December 18, 2001.
January 14, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Zambelli, J.), entered December 14, 2000, which, upon the granting of the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence, is in favor of the defendant and against them, dismissing the complaint.
Harold, Salant, Strassfield Spielberg, White Plains, N.Y. (Eric J. Rotbard of counsel), for appellants.
Susan B. Owens, Valhalla, N.Y. (Debora J. Dillon of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, A. GAIL PRUDENTI, JJ.
ORDERED that the judgment is affirmed, with costs.
The Supreme Court properly granted the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law. On the evidence presented, there is no rational process by which the finder of fact could reach a verdict in favor of the plaintiffs (see, Szczerbiak v. Pilat, 90 N.Y.2d 553). Contrary to the plaintiffs' contentions, the prior written notice requirements of Village Law § 6-628 apply (see, Donnelly v. Village of Perry, 88 A.D.2d 764). The plaintiffs conceded that the defendant did not have prior written notice of the defective condition, and failed to show that the defendant created the condition by an affirmative act of negligence or that its use of the property constituted a special use for its benefit (see, ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606; Barnes v. City of Mount Vernon, 245 A.D.2d 407).
ALTMAN, J.P., ADAMS, TOWNES and PRUDENTI, JJ., concur.
Motion by the respondent on an appeal from a judgment of the Supreme Court, Westchester County, entered December 14, 2000, to strike stated portions of the record on appeal on the ground that those portions constitute matter dehors the record.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
ALTMAN, J.P., ADAMS, TOWNES and PRUDENTI, JJ., concur.