Opinion
2012-07-25
Marilyn BOGGI, et al., appellants, v. CITY OF WHITE PLAINS, respondent.
James J. Killerlane, P.C., New York, N.Y. (David M. Samel of counsel), for appellants. Joseph A. Maria, P.C., White Plains, N.Y. (Edward A. Frey of counsel), for respondent.
James J. Killerlane, P.C., New York, N.Y. (David M. Samel of counsel), for appellants. Joseph A. Maria, P.C., White Plains, N.Y. (Edward A. Frey of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Loehr, J.), dated May 31, 2011, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it lacked prior written notice of the allegedly defective condition that caused the subject accident ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;see also McCarthy v. City of White Plains, 54 A.D.3d 828, 829, 863 N.Y.S.2d 500;Granderson v. City of White Plains, 29 A.D.3d 739, 815 N.Y.S.2d 246). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether there was such prior written notice ( see McCarthy v. City of White Plains, 54 A.D.3d at 829, 863 N.Y.S.2d 500). Furthermore, although the plaintiffs attempted to raise a triable issue of fact as to whether the defendant created the condition through an affirmative act of negligence ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104), they failed to do so ( see Hyland v. City of New York, 32 A.D.3d 822, 823–824, 821 N.Y.S.2d 138;see also Schleif v. City of New York, 60 A.D.3d 926, 927–928, 875 N.Y.S.2d 259;Diaz v. City of New York, 56 A.D.3d 599, 600–601, 868 N.Y.S.2d 229). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.