Biehl v. Town of Islip

198 A.D.2d 468, 605 N.Y.S.2d 926

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1993
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered September 10, 1991, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action in 1987, alleging that on November 31, 1986, the infant plaintiff fell and injured himself on Johnson Avenue in the Town of Islip (hereinafter the Town). He claimed that the fall was the result of an above-ground metal stake embedded in the grass which was put there by the Town. The Town moved for summary judgment dismissing the complaint, on the ground that it did not receive prior written notice of the alleged stake, as required by Town Law § 65-a and Islip Town Code ch 47-A, and that it did not create the alleged condition.

We find that the Supreme Court properly granted the Town’s motion for summary judgment. The Town made out a prima facie case for summary judgment and the plaintiff has failed to demonstrate the existence of any triable issues of fact (see, CPLR 3212). Bracken, J. P., Miller, Lawrence and Pizzuto, JJ., concur.