LATALARDO v. TOWN OF CLARKSTOWN (2009)

In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated December 11, 2007, as granted that branch of the motion of the defendant New York Bituminous Products Corp. which was for summary judgment dismissing the complaint insofar as asserted against it and the cross motion of the defendant Town of Clarkstown for the same relief, and (2) from an order of the same court dated May 27, 2008, which denied her motion for leave to reargue her opposition to the cross motion of the defendant Town of Clarkstown.

ORDERED that the appeal from the order dated May 27, 2008, is dismissed, as no appeal lies from an order denying leave to reargue;  and it is further,

ORDERED that the order dated December 11, 2007, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The plaintiff tripped and fell on a curb adjacent to a parking lot owned by the defendant Town of Clarkstown.   The defendant New York Bituminous Products Corp. (hereinafter NYBP) had repaired cracks in the parking lot more than one year before the plaintiff's accident.   The Supreme Court, inter alia, awarded summary judgment dismissing the complaint to both defendants insofar as asserted against them.

 The Town established its entitlement to judgment as a matter of law with proof that it did not have prior written notice of the alleged defect (see Koehler v. Incorporated Vil. of Lindenhurst, 42 A.D.3d 438, 839 N.Y.S.2d 539;  Silburn v. City of Poughkeepsie, 28 A.D.3d 468, 469, 813 N.Y.S.2d 193;  Adams v. City of Poughkeepsie, 296 A.D.2d 468, 745 N.Y.S.2d 203).   In response, the plaintiff alleged that the prior written notice requirement was inapplicable because the Town created the defect through an affirmative act of negligence.   However, the ultimate assertions in the unsworn expert report relied upon by the plaintiff were unsupported by any evidentiary foundation and, therefore, were insufficient to raise a triable issue of fact (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68;  Alger v. CVS Mack Drug of N.Y., LLC, 39 A.D.3d 928, 929, 833 N.Y.S.2d 289;  Guldy v. Pyramid Corp., 222 A.D.2d 815, 816, 634 N.Y.S.2d 788).

 Moreover, the plaintiff failed to raise a triable issue of fact in response to NYBP's showing that it owed no duty to the plaintiff (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141-142, 746 N.Y.S.2d 120, 773 N.E.2d 485).