Opinion
June 1, 1998
Appeal from the Supreme Court, Rockland County (Bergerman, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Town of Clarkstown, and the action against the remaining defendants is severed.
It is undisputed that the Town did not, under Town Law § 65-a Town (1) and Town of Clarkstown Code § 188, receive prior written notice of any roadway defect in the area of the subject accident. Thus, it was incumbent upon the plaintiff to submit competent evidence that the Town affirmatively created the defect so as to raise an issue of fact necessitating a trial ( see, Gianna v. Town of Islip, 230 A.D.2d 824; Goldston v. Town of Babylon, 145 A.D.2d 534). Since the plaintiff failed to do so, the Town was entitled to summary judgment.
Rosenblatt, J. P., Copertino, Santucci and Goldstein, JJ., concur.