| De Rosso v Town of Poughkeepsie |
| 2008 NY Slip Op 04828 [51 AD3d 966] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Sharon De Rosso et al., Appellants, v Town ofPoughkeepsie, Respondent. |
—[*1] McCabe & Mack, LLP, Poughkeepsie, N.Y. (Christina M. Bookless of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Brands, J.), dated May 9, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
While walking her dog in the roadway of Wasson Drive, located in the defendant Town ofPoughkeepsie, the plaintiff Sharon De Rosso tripped and fell, allegedly as a result of a1¼-inch height differential between an asphalt patch and the surrounding roadway. Afterthe plaintiffs commenced the present action and discovery was conducted, the defendant movedfor summary judgment dismissing the complaint, inter alia, on the ground that the plaintiffs hadnot complied with the prior written notice requirements of Town Law § 67 and Town ofPoughkeepsie Code § 142-1. The Supreme Court granted the motion, and we affirm.
The Town established its entitlement to judgment as a matter of law based upon theplaintiffs' failure to comply with the prior written notice requirements (see Yarborough v City of New York,10 NY3d 726, 728 [2008]; Giffordsv Water Auth. of Great Neck N., 40 AD3d 695, 695-696 [2007]; Lopez v G&J Rudolph Inc., 20 AD3d511, 512 [2005]; Gold v County ofWestchester, 15 AD3d 439, 440 [2005]; Corey v Town of Huntington, 9 AD3d 345, 346 [2004]). Althoughan exception to the prior notice [*2]requirement exists when themunicipality creates the subject defect through an affirmative act of negligence (see Amabilev City of Buffalo, 93 NY2d 471, 474 [1999]; Alvino v City of New York, 49 AD3d 676 [2008]; Wilkie v Town of Huntington, 29AD3d 898 [2006]), the plaintiffs failed to raise a triable issue of fact because they "presentedno evidence of who last repaved this section of the roadway before the accident, when any suchwork may have been carried out, or the condition of the asphalt . . . immediatelyafter any such resurfacing" (Oboler vCity of New York, 8 NY3d 888, 890 [2007]; see Yarborough v City of NewYork, 10 NY3d at 728). Mastro, J.P., Spolzino, Balkin and Leventhal, JJ., concur.