Mary Madtes, Appellant, v. Town of Brookhaven, Respondent, et al., Defendants

Mary Madtes, Appellant, v Town of Brookhaven, Respondent, et al., Defendants. [712 NYS2d 897] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated April 28, 1999, which granted the motion of the defendant Town of Brookhaven for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed, with costs. The Supreme Court properly granted the motion for summary judgment by the Town of Brookhaven (hereinafter the Town) as it demonstrated that it was not provided with prior written notice of the defective condition in the roadway which caused the plaintiff’s accident (see, Brody v Town of Brookhaven, 207 AD2d 425; Town of Brookhaven Code § 84-1; Town Law § 65-a; see also, Amabile v City of Buffalo, 93 NY2d 471). Moreover, we agree with the Supreme Court that the expert affidavit submitted by the plaintiff was based upon speculation and failed to raise a triable issue of fact as to whether the Town affirmatively created the condition in the roadway (see, Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917; Woodard v City of New York, 262 AD2d 405; Brody v Town of Brookhaven, supra; cf., Mayer v Town of Brookhaven, 266 AD2d 360. O’Brien, J. P., Sullivan, Altman and H. Miller, JJ., concur.