| Dailey v Village of Nyack |
| 2010 NY Slip Op 08526 [78 AD3d 882] |
| November 16, 2010 |
| Appellate Division, Second Department |
| John Dailey et al., Appellants, v Village of Nyack,Respondent, et al., Defendants. |
—[*1] Hodges, Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), datedJuly 31, 2009, as granted that branch of the motion of the defendant Village of Nyack which wasfor summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff John Dailey allegedly sustained injuries when he stepped out of a van and ontoa deteriorated curb on Mountain View Avenue, in the Village of Nyack, at or near the locationwhere it serves as an overpass bridge that crosses over the New York State Thruway. Afterjoinder of issue, the Village moved, inter alia, for summary judgment dismissing the complaintinsofar as asserted against it, asserting that it did not have prior written notice of the allegedhazard, as required by section 36-1 of the Code of the Village of Nyack. The Village establishedits prima facie entitlement to judgment as a matter of law by submitting the affidavit of VillageTreasurer John Cincotta, wherein he stated that his search of the Village's records revealed noprior written notice, inter alia, of any hazardous curb condition in the area where the accidentoccurred (see LiFrieri v Town ofSmithtown, 72 AD3d 750 [2010]). In opposition, the plaintiffs failed to raise a triableissue of fact as to whether any exception to the prior written notice requirement applied in thiscase (see LiFrieri v Town ofSmithtown, 72 AD3d 750 [2010]). Accordingly, the Supreme Court properly awardedsummary judgment to the Village. Prudenti, P.J., Covello, Florio and Belen, JJ., concur.