Majority
p. 977Naomi Weinfeld et al., Appellants, v J. Robert Roth Associates, Inc., et al., Appellants, and Town of Amherst, Respondent. (Appeal No. 2.)
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of the defendant Town of Amherst for summary judgment. Pursuant to the Town Law, no action may be maintained unless prior written notice of the defect is given (Town Law § 65-a [2]; see, Bimstein v Levine, 129 AD2d 757 , 758; Zigman v Town of Hempstead, 120 AD2d 520 , 521; Abbatecola v Town of Islip, 97 AD2d 780 ). In the absence of compliance with the statutory notice provision, no cause of action exists even if the municipality had actual notice of the defect (see, Zimmerman v City of Niagara Falls, 112 AD2d 17 ; Drzewiecki v City of Buffalo, 51 AD2d 870 , 871).
p. 978
Affidavits submitted by the Town on its motion from the Town Clerk and Superintendent of Highways were sufficient to satisfy its initial burden that no prior written notice was filed with the Town (see, Goldberg v Town of Hempstead, 156 AD2d 639 , 640). Plaintiffs then failed to satisfy their burden "that written notice had been given to the town or that the town was affirmatively négligent so as to create an issue of fact necessitating a trial” (Goldston v Town of Babylon, 145 AD2d 534 , 535; Zigman v Town of Hempstead, supra, at 521). (Appeals from Order of Supreme Court, Erie County, Wolf, J. —Summary Judgment.) Present—Callahan, A. P. J., Doerr, Boomer, Balio and Lawton, JJ.
Cases cited
- Bimstein v. Levine 129 AD2d 757 at 758 p. 977
- Zigman v. Town of Hempstead 120 AD2d 520 at 521 p. 977
- Abbatecola v. Town of Islip 97 AD2d 780 p. 977
- Goldberg v. Town of Hempstead 156 AD2d 639 at 640 p. 978