AZIZ v. Midneck Realty Corp., Appellant, et al., Defendants. (1997)

In an action to recover damages for personal injuries, etc., the defendant Midneck Realty Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated March 1, 1996, as, in effect, dismissed its cross claim asserted against the defendant Village of Great Neck Plaza.

ORDERED that the order is affirmed insofar as appealed from, with costs.

As the plaintiffs' cause of action against the Village of Great Neck Plaza (hereinafter the Village) was properly dismissed on the ground that the Village never received actual, prior, written notice of the alleged defect in the sidewalk which caused the injuries to the plaintiff Roghiegh Aziz (see, Village Law § 6-628), the defendant Midneck Realty Corp. (hereinafter Midneck) may not properly seek contribution from the Village (see, Barry v. Niagara Frontier Tr. System, 35 N.Y.2d 629, 364 N.Y.S.2d 823, 324 N.E.2d 312;  O'Rourke v. Town of Smithtown, 129 A.D.2d 570, 514 N.Y.S.2d 68;  Kramme v. Town of Hempstead, 100 A.D.2d 447, 474 N.Y.S.2d 108).   The Supreme Court therefore correctly severed the plaintiffs' action against Midneck, and dismissed Midneck's cross claims against the Village (see also, Boscolo v. County of Nassau, 229 A.D.2d 457, 645 N.Y.S.2d 537;  Fitzrandolph v. Rodrigue, 205 A.D.2d 496, 613 N.Y.S.2d 37;  Strauss v. Town of Oyster Bay, 201 A.D.2d 553, 607 N.Y.S.2d 730).

MEMORANDUM BY THE COURT.