NASH v. VILLAGE OF CEDARHURST (2002)

In an action to recover damages for personal injuries, the defendant Village of Cedarhurst appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winick, J.), dated April 30, 2001, as denied its motion for summary judgment dismissing the complaint insofar as asserted against that defendant.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendant Village of Cedarhurst is granted, and the complaint is dismissed insofar as asserted against that defendant.

 The defendant Village of Cedarhurst (hereinafter the Village) made a prima facie showing of its entitlement to judgment as a matter of law by establishing that it did not receive the requisite prior written notice of the alleged defective condition, and that it only repaired sidewalks adjacent to Village-owned properties.   Thus, it was incumbent upon the plaintiff to submit competent evidence that the Village affirmatively created the defect (see, Gillan v. Town of Clarkstown, 251 A.D.2d 287, 671 N.Y.S.2d 1023;  Stern v. Incorporated Vil. of Flower Hill, 278 A.D.2d 225, 716 N.Y.S.2d 918).   Since the plaintiff failed to do so, the Village was entitled to summary judgment dismissing the complaint insofar as asserted against it (see, Butts v. Village of Sag Harbor, 260 A.D.2d 419, 688 N.Y.S.2d 197;  ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 684 N.Y.S.2d 258).   The plaintiff's assertion that the Village created the defect when the sidewalk was installed is without any evidentiary foundation and speculative.   Therefore, it was insufficient to raise a triable issue of fact (see, Stern v. Incorporated Vil. of Flower Hill, supra;  Amarante v. Village of Tarrytown, 226 A.D.2d 488, 640 N.Y.S.2d 619).