GOLDBERGER v. VILLAGE OF KIRYAS JOEL (2006)

In an action, inter alia, to recover damages for personal injuries, the defendant Village of Kiryas Joel appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated August 12, 2005, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it and, in effect, denied that branch of its motion which was for leave to amend its answer to include the affirmative defense of lack of prior written notice.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The appellant, Village of Kiryas Joel, contends that it cannot be held liable for the alleged sidewalk defect on the ground that it did not receive written notice of the defect before the occurrence as required pursuant to Village Law § 6-628 (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Lopez v. G & J Rudolph, 20 A.D.3d 511, 799 N.Y.S.2d 254;  Ganzenmuller v. Incorporated Vil. of Port Jefferson, 18 A.D.3d 703, 795 N.Y.S.2d 744;  Eidlisz v. Village of Kiryas Joel, 302 A.D.2d 558, 755 N.Y.S.2d 422).   The proof relied upon by the Village, the deposition testimony of the Village's Superintendent of the Department of Public Works, who testified, “I conducted a search if there's any notices.   I didn't find any,” and the unsworn letter from the Village Administrator, was insufficient to establish its entitlement to judgment as a matter of law pursuant to CPLR 3212(b) that it did not have prior written notice of the defective sidewalk condition which caused the fall of the plaintiff Rivka Goldberger (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Rupp v. City of Port Jervis, 10 A.D.3d 391, 780 N.Y.S.2d 766;  Clarke v. Brooklyn Union Gas Co., 297 A.D.2d 779, 747 N.Y.S.2d 581).

The Village's remaining contentions are without merit.