Opinion
2004-865 N C.
Decided March 2, 2005.
Appeal by defendant Village of Port Washington North from an order of the District Court, Nassau County (D. Gross, J.), dated February 18, 2004, which denied its motion for summary judgment.
Order unanimously reversed with $10 costs and motion by defendant Village of Port Washington North for summary judgment dismissing the complaint as against it granted.
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
In September 1995, Noel Ilberg, a resident of the Village of Port Washington North (Village), sent the Village a letter complaining about several potholes in front of his house and the condition of the roadway by his driveway. In August 2002, plaintiff Nancy Galassi, who resided next door to Ilberg, was injured when she tripped in the roadway in front of their houses. She commenced the instant action to recover damages for her injuries and her husband asserted a derivative claim. The Village moved for summary judgment on the ground that it did not receive prior written notice of the alleged defect as required by Village Law § 6-628. In opposition, plaintiffs asserted that Ilberg's letter constituted prior written notice and that the Village may have created the defect. After the court denied the Village's motion for summary judgment, this appeal ensued.
To maintain the instant action, plaintiffs had to establish that the Village created the defect which caused Galassi's fall or that the Village received prior written notice of the specific defect which caused the fall ( see Village Law § 6-628; Acheson v. City of Mount Vernon, 6 AD3d 468, 469). Moreover, a generalized complaint about the condition of the roadway is insufficient to constitute prior written notice of a specific defect ( see Acheson, 6 AD3d at 469; Gellos v. Town of Hempstead, 284 AD2d 370; Damante v. Town of Hempstead, 227 AD2d 433, 434). As a result, Ilberg's letter did not constitute prior written notice of the defect because the location of the defects referred to in his letter differed from the location of the defect which allegedly caused the instant accident. Moreover, plaintiffs did not refute Ilberg's affidavit which stated that shortly after his letter, the defects referred to in his letter were repaired and, in any event, it would be speculative to assume that the defect which caused Galassi to fall existed five years earlier when the letter was sent to the Village ( see Damante, 227 AD2d at 434). In addition, although plaintiffs also claimed that the Village created the defect, the Village submitted evidence in admissible form establishing that the allegation lacked merit.
"In making our determination, we have not considered matter[s] in the plaintiffs' brief which [are] dehors the record, nor their argument based upon [them]" ( Ceglia v. Marine Midland Bank, 296 AD2d 473, 474; see also Chimarios v. Duhl, 152 AD2d 508, 509; Katz v. Rodolfo Valentin Salon, Spa Hairpieces, 3 Misc 3d 126[A], 2004 NY Slip Op 50312[U] [App Term, 9th 10th Jud Dists]).