Majority
p. 773Marilyn Boggi et al., Appellants, v City of White Plains, Respondent. [948 NYS2d 562]
The defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it lacked prior written notice of the allegedly defective condition that caused the subject accident (see Groninger v Village of Mamaroneck, 17 NY3d 125 , 129 [2011]; see also McCarthy v City of White Plains, 54 AD3d 828 , 829 [2008]; Granderson v City of White Plains, 29 AD3d 739 [2006]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether there was such prior written notice (see McCarthy v City of White Plains, 54 AD3d at 829 ). Furthermore, although the plaintiffs attempted
p. 774
to raise a triable issue of fact as to whether the defendant created the condition through an affirmative act of negligence (see Amabile v City of Buffalo, 93 NY2d 471 , 474 [1999]), they failed to do so (see Hyland v City of New York, 32 AD3d 822 , 823-824 [2006]; see also Schleif v City of New York, 60 AD3d 926 , 927-928 [2009]; Diaz v City of New York, 56 AD3d 599 , 600-601 [2008]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Skelos, J.P., Dickerson, Leventhal and Roman, JJ., concur.
Cases cited
- Groninger v. Village of Mamaroneck 17 NY3d 125 at 129 p. 773
- McCarthy v. City of White Plains 54 AD3d 828 at 829 p. 773
- Granderson v. City of White Plains 29 AD3d 739 p. 773
- Amabile v. City of Buffalo 93 NY2d 471 at 474 p. 774
- Hyland v. City of New York 32 AD3d 822 at 823-824 p. 774
- Schleif v. City of New York 60 AD3d 926 at 927-928 p. 774