From Casetext: Smarter Legal Research

Nash v. Village of Cedarhurst

Appellate Division of the Supreme Court of New York, Second Department
Feb 19, 2002
291 A.D.2d 485 (N.Y. App. Div. 2002)

Opinion

2001-05093

Submitted January 22, 2002.

February 19, 2002.

In an action to recover damages for personal injuries, the defendant Village of Cedarhurst appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winick, J.), dated April 30, 2001, as denied its motion for summary judgment dismissing the complaint insofar as asserted against that defendant.

Huenke Rodriguez, Melville, N.Y. (Kenneth C. Rybacki, Jr., of counsel), for appellant.

Falk Klebanoff, P.C., West Hempstead, N.Y. (Jeffrey P. Falk of counsel), for respondent.

Before: A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.


ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendant Village of Cedarhurst is granted, and the complaint is dismissed insofar as asserted against that defendant.

The defendant Village of Cedarhurst (hereinafter the Village) made a prima facie showing of its entitlement to judgment as a matter of law by establishing that it did not receive the requisite prior written notice of the alleged defective condition, and that it only repaired sidewalks adjacent to Village-owned properties. Thus, it was incumbent upon the plaintiff to submit competent evidence that the Village affirmatively created the defect (see, Gillian v. Town of Clarkstown, 251 A.D.2d 287; Stern v. Incorporated Vil. of Flower Hill, 278 A.D.2d 225). Since the plaintiff failed to do so, the Village was entitled to summary judgment dismissing the complaint insofar as asserted against it (see, Butts v. Village of Sag Harbor, 260 A.D.2d 419; ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606). The plaintiff's assertion that the Village created the defect when the sidewalk was installed is without any evidentiary foundation and speculative. Therefore, it was insufficient to raise a triable issue of fact (see, Stern v. Incorporated Vil. of Flower Hill, supra; Amarante v. Village of Tarry Town, 226 A.D.2d 488).

PRUDENTI, P.J., SANTUCCI, LUCIANO and SCHMIDT, JJ., concur.


Summaries of

Nash v. Village of Cedarhurst

Appellate Division of the Supreme Court of New York, Second Department
Feb 19, 2002
291 A.D.2d 485 (N.Y. App. Div. 2002)
Case details for

Nash v. Village of Cedarhurst

Case Details

Full title:ESTELLE NASH, respondent, v. VILLAGE OF CEDARHURST, appellant, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 19, 2002

Citations

291 A.D.2d 485 (N.Y. App. Div. 2002)
738 N.Y.S.2d 368

Citing Cases

Skates v. City of New York

The plaintiff alleges that she tripped and fell as a result of a defective condition in a roadway in Queens.…

Minier v. City of New York

e complaint and all cross claims insofar as asserted against it. After Tucci established its prima facie…