Opinion
Submitted May 23, 2000
August 30, 2000.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated April 28, 1999, which granted the motion of the defendant Town of Brookhaven for summary judgment dismissing the complaint insofar as asserted against it.
Easton Clark, Levittown, N.Y. (Deborah S. Kurtz of counsel), for appellant.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Robert M. Smith of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the motion for summary judgment by the Town of Brookhaven (hereinafter the Town) as it demonstrated that it was not provided with prior written notice of the defective condition in the roadway which caused the plaintiff's accident (see, Brody v. Town of Brookhaven, 207 A.D.2d 425; Town of Brookhaven Code § 84-1; Town Law § 65-a; see also, Amabile v. City of Buffalo, 93 N.Y.2d 471). Moreover, we agree with the Supreme Court that the expert affidavit submitted by the plaintiff was based upon speculation and failed to raise a triable issue of fact as to whether the Town affirmatively created the condition in the roadway (see, Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917; Woodard v. City of New York, 262 A.D.2d 405; Brody v. Town of Brookhaven, supra; cf., Mayer v. Town of Brookhaven, 266 A.D.2d 360.