DeLorm v. Village of Lyons

269 A.D.2d 793, 703 N.Y.S.2d 641, 2000 N.Y. App. Div. LEXIS 1682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against defendant Village of Lyons dismissed. Memorandum: Supreme Court erred in denying the motion of the Village of Lyons (defendant) for summary judgment. Defendant submitted proof in admissible form sufficient to establish that it had not received prior written notice of the defective condition of the sidewalk where plaintiff Patricia A. DeLorm fell and sustained injuries (see, Village Law § 6-628). Plaintiffs’ submissions in opposition to the motion failed to raise an issue of fact with respect to prior written notice or whether defendant’s affirmative acts created the defective condition (see, Fusco v City of Rome, 236 AD2d 869, 869-870). Contrary to the contention of plaintiffs, neither constructive notice (see, Amabile v City of Buffalo, 93 NY2d 471, 475-476; Tonorezos v County of Nassau, 266 AD2d 387) nor actual notice (see, Sorrento v Duff, 261 AD2d 919; Wisnowski v City of Syracuse, 213 AD2d l069; Lalley v Adam, Meldrum & Anderson Co., 186 AD2d 1083) is sufficient to override the statutory requirement of prior written notice. (Appeal from Order of Supreme Court, Wayne County, Parenti, J.— Summary Judgment.) Present — Pine, J. P., Wisner, Hurlbutt and Balio, JJ.