| Loughlin v Town of N. Hempstead |
| 2011 NY Slip Op 04212 [84 AD3d 1035] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Mary Loughlin, Appellant, v Town of North Hempstead,Respondent. |
—[*1] Richard S. Finkel, Town Attorney, Manhasset, N.Y. (Linda B. Zuech and Peter A.Dzwilewski of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Brandveen, J.), entered December 14, 2009, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action against the Town of North Hempstead to recoverdamages for personal injuries she allegedly sustained when she tripped and fell on a sidewalkmaintained by the Town. The Town moved for summary judgment dismissing the complaint onthe ground that it had not received prior written notice of the allegedly dangerous condition. TheSupreme Court granted the motion, and the plaintiff appeals. We affirm.
The Town established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not have prior written notice of the allegedly dangerous condition of thesidewalk (see Code of the Town of North Hempstead § 26-1; Camenson vTown of N. Hempstead, 298 AD2d 543, 543 [2002]; see also Regan v Town of N. Hempstead, 66 AD3d 863, 864[2009]; Jason v Town of N.Hempstead, 61 AD3d 936, 936 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Townreceived prior written notice or whether the Town either created the alleged hazard through anaffirmative act of negligence or enjoyed a special use over the portion of the sidewalk where shefell, the two recognized exceptions to the notice requirement (see Jason v Town of N.Hempstead, 61 AD3d at 936-937; see also Amabile v City of Buffalo, 93 NY2d 471,474 [1999]). Contrary to the plaintiff's contention, the affidavit of her expert was insufficient toraise a triable issue of fact as to whether the Town created the alleged hazard through anaffirmative act of negligence, because his conclusions "were not supported by empirical data orany relevant construction practice or industry standards, and [he] failed to explain how he hadreached the conclusions that he did" (Delgado v County of Suffolk, 40 AD3d 575, 576 [2007]; see Rochford v City of Yonkers, 12AD3d 433, 434 [2004]; see also Sollowen v Town of Brookhaven, 43 AD3d [*2]816, 817 [2007]; Winsche v Town of N. Hempstead, 304AD2d 756, 757 [2003]). Moreover, the plaintiff did not attempt to show that the Town had aspecial use over the relevant portion of the sidewalk.
Accordingly, the Supreme Court properly granted the Town's motion for summary judgmentdismissing the complaint. Dillon, J.P., Balkin, Leventhal and Hall, JJ., concur. [Prior CaseHistory: 2009 NY Slip Op 33005(U).]