Berlowitz v. Town of Brighton

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant, the Town of Brighton (Town), for summary judgment dismissing the complaint. Myra N. Berlowitz (plaintiff) sustained injuries on October 11,1995, when she fell on a cracked sidewalk in front of 203 Esplanade Drive in the Town of Brighton. Plaintiffs concede that the Town sustained its burden of demonstrating that it had not received prior written notice of the defect as required by Town Law § 65-a (2) and Brighton Town Code § 166-1. Plaintiffs failed to submit proof in evidentiary form to raise an issue of fact whether the Town created the defective condition (see, Gutierrez v Cohen, 227 AD2d 447, 448; Kaempf v Town of Hempstead, 170 AD2d 652). Contrary to plaintiffs’ contention, the fact that the Town “might have had actual or constructive notice of the defect is not a substitute for compliance with the statute” (Deans v City of Buffalo, 181 AD2d 1015; see also, Amabile v City of Buffalo, 251 AD2d 967, lv granted 92 NY2d 813). (Appeal from Order of Supreme Court, Monroe County, Siracuse, J. — Summary Judgment.) Present — Denman, P. J., Law-ton, Hayes, Pigott, Jr., and Scudder, JJ.