Boggi v City of White Plains
2012 NY Slip Op 05712 [97 AD3d 773]
July 25, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 22, 2012


Marilyn Boggi et al., Appellants,
v
City of White Plains, Respondent.

[*1] James J. Killerlane, P.C., New York, N.Y. (David M. Samel of counsel), for appellants.

Joseph A. Maria, P.C., White Plains, N.Y. (Edward A. Frey of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Loehr, J.), dated May 31, 2011, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it lacked prior written notice of the allegedly defective condition that caused the subject accident (see Groninger v Village of Mamaroneck, 17 NY3d 125, 129 [2011]; see also McCarthy v City of White Plains, 54 AD3d 828, 829 [2008]; Granderson v City of White Plains, 29 AD3d 739 [2006]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether there was such prior written notice (see McCarthy v City of White Plains, 54 AD3d at 829). Furthermore, although the plaintiffs attempted to raise a triable issue of fact as to whether the defendant created the condition through an affirmative act of negligence (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]), they failed to do so (see Hyland v City of New York, 32 AD3d 822, 823-824 [2006]; see also Schleif v City of New York, 60 AD3d 926, 927-928 [2009]; Diaz v City of New York, 56 AD3d 599, 600-601 [2008]). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. Skelos, J.P., Dickerson, Leventhal and Roman, JJ., concur.