Anderson v. Town of Smithtown

292 A.D.2d 406, 738 N.Y.S.2d 860, 2002 N.Y. App. Div. LEXIS 2519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County, dated September 20, 2001 (Molia, J.), which denied their motion for summary judgment dismissing the defendant’s affirmative defense of lack of prior written notice and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A condition precedent to maintaining an action against the Town of Smithtown arising from a sidewalk defect is that written notice be filed with the Town Clerk at least 15 days before the accident (see, Smithtown Code §§ 245-13, 245-14). No such written notice was given here. Accordingly, the Supreme Court properly denied the plaintiffs’ motion for summary judgment dismissing the defendant’s affirmative defense of lack of prior written notice and granted the defendant’s cross motion for summary judgment dismissing the complaint. Altman, J.P., Adams, Townes and Crane, JJ., concur.