| Smith v Village of Rockville Ctr. |
| 2008 NY Slip Op 09778 [57 AD3d 649] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mLisa Ann Smith, Respondent, v Village of Rockville Centre,Appellant, et al., Defendant. |
—[*1] Matthew A. Sosnik (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum],of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Village of Rockville Centreappeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated June 24, 2008,which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the appellant's motion for summaryjudgment dismissing the complaint insofar as asserted against it is granted.
The plaintiff allegedly sustained injuries when she tripped and fell on a public sidewalk within thedefendant Village of Rockville Centre (hereinafter the Village). Specifically, she tripped over "unevenbricks." Those bricks had been installed by a contractor the Village hired.
On its motion for summary judgment dismissing the complaint insofar as asserted against it, theVillage made a prima facie showing of entitlement to judgment as a matter of law by providing evidencedemonstrating that it lacked prior written notice of the allegedly dangerous condition in the sidewalk, asrequired by the Code of Incorporated Village of Rockville Centre § 66-1 (referencing formerVillage Law § 341-a, recodified as Village Law § 6-628; see Jacobs v Village of Rockville Ctr., 41AD3d 539, 540 [2007]). Contrary to the Supreme Court's determination, in opposition, theplaintiff failed to raise a triable issue of fact. While the plaintiff attempted to raise a triable issue of factas to the applicability of the so-called "affirmative negligence exception" to the [*2]statutory rule requiring prior written notice, she failed to provide anyevidence tending to show that work by the Village's contractor "immediately result[ed] in theexistence of" the uneven brick "condition" (Oboler v City of New York, 8 NY3d 888, 889 [2007]; see Yarborough v City of New York, 10NY3d 726, 728 [2008]). Accordingly, the Village's motion for summary judgment dismissing thecomplaint insofar as asserted against it should have been granted (see Jacobs v Village of RockvilleCtr., 41 AD3d at 540). Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.