Martin J. Gillan, as Administrator of the Estate of Matthew Gillan, Deceased, Respondent, v. Town of Clarkstown, Appellant, et al., Defendants

Martin J. Gillan, as Administrator of the Estate of Matthew Gillan, Deceased, Respondent, v Town of Clarkstown, Appellant, et al., Defendants. [671 NYS2d 1023] [MAJORITY] —In an action to recover damages for personal injuries, the defendant Town of Clarkstown appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated June 10, 1997, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Town of Clarkstown, and the action against the remaining defendants is severed. It is undisputed that the Town did not, under Town Law § 65-a (1) and Town of Clarkstown Code § 188, receive prior written notice of any roadway defect in the area of the subject accident. Thus, it was incumbent upon the plaintiff to submit competent evidence that the Town affirmatively created the defect so as to raise an issue of fact necessitating a trial (see, Gianna v Town of Islip, 230 AD2d 824; Goldston v Town of Babylon, 145 AD2d 534). Since the plaintiff failed to do so, the Town was entitled to summary judgment. Rosenblatt, J. P., Copertino, Santucci and Goldstein, JJ., concur.