| Gilmore v Village of Hempstead |
| 2008 NY Slip Op 00226 [47 AD3d 676] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Gloria Gilmore, Appellant, v Village of Hempstead,Respondent, et al., Defendants. |
—[*1] Garry & Garry, New York, N.Y. (William J. Garry of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), datedOctober 23, 2006, as granted the motion of the defendant Village of Hempstead for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
On its motion, the defendant Village of Hempstead made a prima facie showing ofentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). The Village submitted evidence establishing that it lacked prior written notice of theallegedly dangerous sidewalk condition that caused the plaintiff to trip and fall (seeVillage Law § 6-628; CPLR 9804; Koehler v Incorporated Vil. of Lindenhurst, 42 AD3d 438 [2007];Horan v Christ Episcopal Church, 227 AD2d 592 [1996]). In opposition, the plaintifffailed to raise a triable issue of fact as to whether the Village received prior written notice of thecondition. The Village also established that the plaintiff had a duty to maintain the area whereshe fell, and was responsible for any injuries resulting from her breach of that duty (seeVillage of Hempstead Code § 116-1 [A], [B]; § 116-2; see also Hausser vGiunta, 88 NY2d 449, 453 [1996]; Willis v Parker, 225 NY 159, 164-165 [1919]). Inopposition, the plaintiff failed to raise a triable issue of fact as to whether the Villageaffirmatively created the condition or whether the condition constituted a special use enjoyed bythe Village (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999];Merskey-Zeger v Village of Mamaroneck, 181 AD2d 761, 762 [1992]).[*2]
Accordingly, the Supreme Court properly granted theVillage's motion for summary judgment dismissing the complaint insofar as asserted against it.Rivera, J.P., Santucci, Lifson and Covello, JJ., concur.