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Bittner v. Town of Islip

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


July 14, 2009

NORA BITTNER, RESPONDENT,
v.
TOWN OF ISLIP, APPELLANT, ET AL., DEFENDANT.

In an action to recover damages for personal injuries, the defendant Town of Islip appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated September 2, 2008, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ANITA R. FLORIO & PLUMMER E. LOTT, JJ.

(Index No. 23804/06)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Town of Islip for summary judgment dismissing the complaint insofar as asserted against it is granted.

The defendant Town of Islip established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not have prior written notice of a defect on a sidewalk that allegedly caused the plaintiff to fall (see Town Law § 65-a[2]; Scafidi v Town of Islip, 34 AD3d 669; Augustine v Town of Islip, 28 AD3d 503). In opposition, the respondents failed to submit evidence sufficient to raise a triable issue of fact (see Granderson v City of White Plains, 29 AD3d 739, 740; Sommer v Town of Hempstead, 271 AD2d 434). Accordingly, the Supreme Court should have granted the Town's motion for summary judgment dismissing the complaint insofar as asserted against it.

In light of our determination, we need not reach the Town's remaining contentions.

SPOLZINO, J.P., SANTUCCI, FLORIO and LOTT, JJ., concur.

20090714

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