Opinion
December 19, 1988
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages resulting from her fall on a sidewalk maintained by the defendant. The complaint did not contain any allegation that the town created the defective condition. In its answer, the town asserted, inter alia, that the action was barred by Town Law § 65-a and Local Laws, 1980, No. 2 of the Town of Babylon.
The town moved for summary judgment dismissing the complaint based upon the plaintiff's failure to allege that she had given the town prior written notice specifying the location of the accident. The plaintiff cross-moved for an examination before trial of the town's Superintendent of Highways. The Supreme Court granted the defendant's motion for summary judgment and denied the plaintiff's cross motion as academic.
It is clear that the complaint falls within the requirements of Town Law § 65-a (2), which provides, in relevant part: "No civil action shall be maintained against any town * * * for damages or injuries to person or property sustained by reason of any defect in its sidewalks * * * unless written notice thereof, specifying the particular place, was actually given to the town clerk or to the town superintendent of highways, and there was a failure or neglect to cause such defect to be remedied * * * within a reasonable time after the receipt of such notice".
It was incumbent upon the plaintiff to both plead and prove that prior written notice had been given to the town (see, Abbatecola v Town of Islip, 97 A.D.2d 780). The complaint does not allege that written notice was given to the town. As the complaint did not state a cause of action against the town, it was subject to dismissal (see, Barry v Niagara Frontier Tr. Sys., 35 N.Y.2d 629).
In support of its motion for summary judgment, the town tendered evidentiary proof in admissible from which indicated that it had no record of any written notice with respect to the subject defect in the sidewalk (see, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067; Zigman v Town of Hempstead, 120 A.D.2d 520; Abbatecola v Town of Islip, supra). The plaintiff failed, in opposition to the motion, to come forward with proof that written notice had been given to the town or that the town was affirmatively negligent so as to create an issue of fact necessitating a trial. While the town may have received written notice with respect to other defects in an area nearby the accident site, this does not warrant a different result (see, Leary v City of Rochester, 115 A.D.2d 260, affd 67 N.Y.2d 866; Holt v County of Tioga, 95 A.D.2d 934, mot to dismiss appeal granted 60 N.Y.2d 701; cf., Blake v City of Albany, 63 A.D.2d 1075, affd 48 N.Y.2d 875). Mangano, J.P., Bracken, Kunzeman and Balletta, JJ., concur.