Opinion
2002-07915
Argued March 13, 2003.
April 28, 2003.
In an action to recover damages for personal injuries, etc., the defendant Incorporated Village of Northport appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 18, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
McGahan Catalano, Garden City, N.Y. (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger [Kathleen Foley] of counsel), for appellant.
Sanders, Sanders, Block Woycik, P.C., Mineola, N.Y. (Douglas H. Sanders and Howard Eison of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the Incorporated Village of Northport, and the action against the remaining defendants is severed.
The Incorporated Village of Northport made a prima facie showing of its entitlement to judgment as a matter of law by establishing that it neither received the requisite prior written notice of the alleged defect, nor bore responsibility for the creation of the alleged defect (see Village Law § 6-628; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Contrary to the plaintiffs' contention, they failed to raise an issue of fact that the Village either had prior written notice of the alleged defect or created the subject sidewalk defect through an affirmative act of negligence (see Amabile v. City of Buffalo, supra; Kiernan v. Thompson, 73 N.Y.2d 840, 842; Bang v. Town of Smithtown, 291 A.D.2d 516). Accordingly, the motion by the Village for summary judgment should have been granted and the complaint dismissed insofar as asserted against the Village.
ALTMAN, J.P., SMITH, McGINITY and CRANE, JJ., concur.