Opinion
November 15, 1991
Appeal from the Supreme Court, Erie County, Wolf, J.
Present — Callahan, A.P.J., Doerr, Boomer, Balio and Lawton, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of the defendant Town of Amherst for summary judgment. Pursuant to the Town Law, no action may be maintained unless prior written notice of the defect is given (Town Law § 65-a; see, Bimstein v. Levine, 129 A.D.2d 757, 758; Zigman v. Town of Hempstead, 120 A.D.2d 520, 521; Abbatecola v. Town of Islip, 97 A.D.2d 780). In the absence of compliance with the statutory notice provision, no cause of action exists even if the municipality had actual notice of the defect (see, Zimmerman v. City of Niagara Falls, 112 A.D.2d 17; Drzewiecki v. City of Buffalo, 51 A.D.2d 870, 871).
Affidavits submitted by the Town on its motion from the Town Clerk and Superintendent of Highways were sufficient to satisfy its initial burden that no prior written notice was filed with the Town (see, Goldberg v. Town of Hempstead, 156 A.D.2d 639, 640). Plaintiffs then failed to satisfy their burden "that written notice had been given to the town or that the town was affirmatively negligent so as to create an issue of fact necessitating a trial" (Goldston v. Town of Babylon, 145 A.D.2d 534, 535; Zigman v. Town of Hempstead, supra, at 521).