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

Joel KRAVATZ, et al., respondents, v. COUNTY OF SUFFOLK, appellant.

Decided: May 29, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and RUTH C. BALKIN, JJ. Christine Malafi, County Attorney, Hauppauge, N.Y. (Kelly Green of counsel), for appellant. Bauman, Kunkis & Ocasio-Douglas, P.C. (Kathleen M. Geiger, Long Beach, N.Y., of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), entered January 18, 2006, as, in effect, denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the defect in the roadway that allegedly caused the injured plaintiff's fall (see Lopez v. G & J Rudolph, Inc., 20 A.D.3d 511, 512, 799 N.Y.S.2d 254).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant created the alleged defect through an affirmative act of negligence (see Daniels v. City of New York, 29 A.D.3d 514, 515, 814 N.Y.S.2d 258;  Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

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