Opinion
February 25, 1991
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.
Town Law § 65-a (2) provides that no civil action may be maintained against any town for injuries to person sustained by reason of any defect in the sidewalk unless written notice was actually given to the town clerk. Here, the Town established through affidavits that no prior written notice was given to it with regard to the allegedly defective sidewalk at issue. In opposition to the Town's motion for summary judgment, it was incumbent upon the plaintiffs to establish either prior written notice or evidence that the condition was caused or created by the Town and thereby raise a triable issue of fact. The plaintiffs failed to sustain this burden and thus summary judgment should have been granted to the Town (see, Goldston v Town of Babylon, 145 A.D.2d 534; Bauer v Town of Hempstead, 143 A.D.2d 793; Englehardt v Town of Hempstead, 141 A.D.2d 601; O'Rourke v Town of Smithtown, 129 A.D.2d 570; Gallo v Town of Hempstead, 124 A.D.2d 700; Rodriguez v County of Suffolk, 123 A.D.2d 754).
Further, the plaintiffs failed to prove that the Town created the hole or engaged in any affirmative tortious conduct which would have exempted them from the need to establish compliance with Town Law § 65-a (2) (see, Martin v City of Cohoes, 37 N.Y.2d 162, 166; Zortman v City of Niagara Falls, 101 A.D.2d 711; Gallo v Town of Hempstead, supra). Mangano, P.J., Brown, Sullivan, Harwood and Miller, JJ., concur.