Opinion
March 8, 1993
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the order is reversed, on the law, with costs, and the third-party complaint is dismissed.
The third-party defendant Village of Freeport (hereinafter Freeport) presented unrebutted proof that it never had been given prior notice of any defect in the sidewalk upon which the injured plaintiff was walking when she fell (see, Village Law § 6-628; CPLR 9804). Thus, it was entitled to summary judgment dismissing the third-party complaint (see, Barry v. Niagara Frontier Tr. Sys., 35 N.Y.2d 629, 634).
The third-party plaintiff Tides Inn Realty Corp. (hereinafter Tides) argues that Freeport's construction of replacement sewer lines in the adjacent street, which took place at or about the time of the accident and which also involved replacing sidewalks, might have played an affirmative role in causing the injured plaintiff to fall, obviating the notice requirement. However, none of the evidence it offered connected this work to the accident. Indeed, both the injured plaintiff and her husband, who was walking beside her at the time of the accident, testified at their examinations before trial that they observed no construction debris, dirt or breaks in the sidewalk. A Tides employee, who also testified, admitted he did not see the fall, but rather came out of his place of business shortly afterwards to assist the injured plaintiff. Accordingly, we disagree with the Supreme Court that an issue of fact exists concerning Freeport's creation of a dangerous condition by dint of road or sidewalk repair work and thus conclude that summary judgment should have been granted in Freeport's favor (see, Witte v Incorporated Vil. of Port Washington N., 114 A.D.2d 359). Bracken, J.P., Balletta, Eiber and Copertino, JJ., concur.