BERLOWITZ v. TOWN OF BRIGHTON

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Supreme Court, Appellate Division, Fourth Department, New York.

Myra N. BERLOWITZ and David Berlowitz, Plaintiffs-Appellants, v. TOWN OF BRIGHTON, Defendant-Respondent.

Decided: March 31, 1999

Present:  DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and SCUDDER, JJ. Philip S. Glickman, Rochester, for plaintiffs-appellants. Richard A. Dollinger, Barrett, Greisberger, Dollinger & Fletcher, Webster, for defendant-respondent.

 Supreme Court properly granted the motion of defendant, the Town of Brighton (Town), for summary judgment dismissing the complaint.   Myra N. Berlowitz (plaintiff) sustained injuries on October 11, 1995, when she fell on a cracked sidewalk in front of 203 Esplanade Drive in the Town of Brighton.   Plaintiffs concede that the Town sustained its burden of demonstrating that it had not received prior written notice of the defect as required by Town Law § 65-a(2) and Brighton Town Code § 166-1.   Plaintiffs failed to submit proof in evidentiary form to raise an issue of fact whether the Town created the defective condition (see, Gutierrez v. Cohen, 227 A.D.2d 447, 448, 643 N.Y.S.2d 121;  Kaempf v. Town of Hempstead, 170 A.D.2d 652, 567 N.Y.S.2d 76).   Contrary to plaintiffs' contention, the fact that the Town “might have had actual or constructive notice of the defect is not a substitute for compliance with the statute” (Deans v. City of Buffalo, 181 A.D.2d 1015, 581 N.Y.S.2d 952;  see also, Amabile v. City of Buffalo, 251 A.D.2d 967, 673 N.Y.S.2d 345, lv. granted 92 N.Y.2d 813, 681 N.Y.S.2d 474, 704 N.E.2d 227).

Order unanimously affirmed without costs.

MEMORANDUM: