Gillan v. Town of Clarkstown

Appellate Division of the Supreme Court of New York

Gillan v. Town of Clarkstown

251 A.D.2d 287, 671 N.Y.S.2d 1023, 1998 N.Y. App. Div. LEXIS 6310

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 1, 1998

StatusPublished

Cited by3 cases

This text of 251 A.D.2d 287 (Gillan v. Town of Clarkstown) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gillan v. Town of Clarkstown, 251 A.D.2d 287, 671 N.Y.S.2d 1023, 1998 N.Y. App. Div. LEXIS 6310 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, the defendant Town of Clarkstown appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated June 10, 1997, 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 Town of Clarkstown, and the action against the remaining defendants is severed.

It is undisputed that the Town did not, under Town Law § 65-a (1) and Town of Clarkstown Code § 188, receive prior written notice of any roadway defect in the area of the subject accident. Thus, it was incumbent upon the plaintiff to submit competent evidence that the Town affirmatively created the defect so as to raise an issue of fact necessitating a trial (see, Gianna v Town of Islip, 230 AD2d 824; Goldston v Town of Babylon, 145 AD2d 534). Since the plaintiff failed to do so, the Town was entitled to summary judgment. Rosenblatt, J. P., Copertino, Santucci and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant Town of Clarkstown appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated June 10, 1997, 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 Town of Clarkstown, and the action against the remaining defendants is severed.

It is undisputed that the Town did not, under Town Law § 65-a (1) and Town of Clarkstown Code § 188, receive prior written notice of any roadway defect in the area of the subject accident. Thus, it was incumbent upon the plaintiff to submit competent evidence that the Town affirmatively created the defect so as to raise an issue of fact necessitating a trial (see, Gianna v Town of Islip, 230 AD2d 824; Goldston v Town of Babylon, 145 AD2d 534). Since the plaintiff failed to do so, the Town was entitled to summary judgment. Rosenblatt, J. P., Copertino, Santucci and Goldstein, JJ., concur.

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Bluebook (online)

251 A.D.2d 287, 671 N.Y.S.2d 1023, 1998 N.Y. App. Div. LEXIS 6310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillan-v-town-of-clarkstown-nyappdiv-1998.

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