GREENBERG v. Village of Sag Harbor, Appellant.

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

Marjorie GREENBERG, Respondent, v. Kevin McLAUGHLIN, et al., Defendants, Village of Sag Harbor, Appellant.

Decided: September 22, 1997

Before JOY, J.P., and GOLDSTEIN, FLORIO and LUCIANO, JJ. Torino & Singer, P.C., Mineola (Allison C. Singhel, of counsel), for appellant. Nicolosi & Sciacca, Bayside (Sheila A. McNamara, of counsel), for respondent.

In a negligence action to recover damages for personal injuries, the defendant Village of Sag Harbor appeals from an order of the Supreme Court, Suffolk County (Stark, J.), dated May 15, 1996, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Village of Sag Harbor, and the action against the remaining defendants is severed.

 At approximately 9:30 P.M. on August 6, 1994, the plaintiff allegedly tripped and fell on a raised sidewalk flag in front of the premises located at 272 Main Street in the Village of Sag Harbor.   The plaintiff commenced the instant action to recover damages for the injuries she allegedly sustained.   The defendant Village of Sag Harbor moved for summary judgment based upon the plaintiff's failure to comply with the prior written notice requirements Sag Harbor Village Code § 34-1(A).   The Supreme Court denied the motion, agreeing with the plaintiff that discovery ought to be obtained under CPLR 3212(f).   We disagree.

The Village established its entitlement to summary judgment by submitting the affidavits of the Village Clerk and the Superintendent of Highways indicating that the Village had never received prior written notice of the alleged defective sidewalk (see, West v. Village of Mamaroneck, 172 A.D.2d 827, 570 N.Y.S.2d 985;  Feiner v. Incorporated Vil. of Farmingdale, 168 A.D.2d 418, 562 N.Y.S.2d 544;  Goldberg v. Town of Hempstead, 156 A.D.2d 639, 549 N.Y.S.2d 138).   The plaintiff failed to produce evidence sufficient to create a triable issue of fact as to notice, and this case does not fall into any of the narrow exceptions to the prior written notice requirement (see, Farnsworth v. Village of Potsdam, 228 A.D.2d 79, 651 N.Y.S.2d 748;  Amarante v. Village of Tarrytown, 226 A.D.2d 488, 640 N.Y.S.2d 619;  Gutierrez v. Cohen, 227 A.D.2d 447, 643 N.Y.S.2d 121).   Moreover, there was no duty on the part of the Village to provide street lighting for the area where the plaintiff allegedly fell (see, Abbott v. County of Nassau, 223 A.D.2d 662, 637 N.Y.S.2d 216;   Bauer v. Town of Hempstead, 143 A.D.2d 793, 533 N.Y.S.2d 342).

 While it is true that CPLR 3212(f) permits an opposing party to obtain further discovery under certain circumstances, it should not be resorted to where, as here, there has been a failure to demonstrate that the discovery being sought is anything more than a fishing expedition (see, Zarzona v. City of New York, 208 A.D.2d 920, 617 N.Y.S.2d 534;  Kenworthy v. Town of Oyster Bay, 116 A.D.2d 628, 497 N.Y.S.2d 712;  see also, Auerbach v. Bennett, 47 N.Y.2d 619, 636, 419 N.Y.S.2d 920, 393 N.E.2d 994).

MEMORANDUM BY THE COURT.

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