Mellor v Village of Elmsford, N.Y.

Mellor v Village of Elmsford, N.Y. 2012 NY Slip Op 09036 Decided on December 26, 2012 Appellate Division, Second Department 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.

Decided on December 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
DANIEL D. ANGIOLILLO
SANDRA L. SGROI
SYLVIA HINDS-RADIX, JJ.
2012-01317
(Index No. 29418/09)

[*1]Gary Mellor, et al., appellants,

v

Village of Elmsford, New York, respondent.




Rosenblatt & McGarrity, LLP (Alexander J. Wulwick, New York,
N.Y., of counsel), for appellants.
Thomas Moore, White Plains, N.Y. (Andrea G. Sawyers and
Dominic P. Zafonte of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Walker, J.), entered January 10, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff fell as he stepped off a sidewalk into a roadway and tripped over an allegedly defective curb. The prior written notice requirement of Village Law § 6-628 was applicable to the curb (see Krausch v Incorporated Vil. Of Shoreham, 87 AD3d 715; Dailey v Village of Nyack, 78 AD3d 882; Zigman v Town of Hempstead, 120 AD2d 520; Skelly v Village of Port Chester, 6 AD2d 717). On its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law on the ground that it did not receive prior written notice of the alleged defect. In opposition, the plaintiffs failed to raise a triable issue of fact (see James v City of New Rochelle, 282 AD2d 503).

Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly granted.
ENG, P.J., ANGIOLILLO, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court