Appellate Division of the Supreme Court of New York, 2003

Cenname v. Town of Smithtown

Appellate Division of the Supreme Court of New York · Decided March 3, 2003

303 A.D.2d 351; 755 N.Y.S.2d 651

Cases that cite this one

14 later published cases cite this decision.

Duguay v. City of New York (District Court, S.D. New York 2012)
McCarthy v. City of White Plains (Appellate Division of the Supreme Court of New York 2008)
Granderson v. City of White Plains (Appellate Division of the Supreme Court of New York 2006)
Kolenda v. Incorporated Vil. of Garden City (Appellate Division of the Supreme Court of New York 2023)
Hiller v. Village of Warwick (Appellate Division of the Supreme Court of New York 2021)
Webster v. City Of New York (District Court, S.D. New York 2021)
Wolin v. Town of North Hempstead (Appellate Division of the Supreme Court of New York 2015)
Spanos v. Town of Clarkstown (Appellate Division of the Supreme Court of New York 2011)
Akcelik v. Town of Islip (Appellate Division of the Supreme Court of New York 2007)
Lopez v. Gonzalez (Appellate Division of the Supreme Court of New York 2007)
Peloso v. County of Putnam (Appellate Division of the Supreme Court of New York 2004)
Dalton v. City of Saratoga Springs (Appellate Division of the Supreme Court of New York 2004)
Campisi v. Bronx Water & Sewer Service, Inc. (Appellate Division of the Supreme Court of New York 2003)
Quinn v. City of New York (Appellate Division of the Supreme Court of New York 2003)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Kitson, J.), dated November 7, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, dated February 19, 2002, which, upon the order, dismissed the complaint.

Ordered" that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The infant plaintiff and his guardian commenced this action against the Town of Smithtown to recover damages for injuries he sustained when he fell off his bicycle as a result of an allegedly uneven sidewalk. The Town moved for summary judgment, asserting that it did not receive prior written notice of the defect. The Supreme Court granted the motion. We affirm.

The Town demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it never received prior written notice of the sidewalk defect as required by Smithtown Town Code §§ 245-13 and 245-14. Contrary to the *352plaintiffs’ contention, a verbal complaint written down as a telephone message by the Town Parks Department does not satisfy the prior written notice requirement (see Anderson v Town of Smithtown, 292 AD2d 406 [2002]; Roth v Town of N. Hempstead, 273 AD2d 215, 216 [2000]; Sparrock v City of New York, 242 AD2d 289 [1997]). The fact that the Town may have inspected the sidewalk prior to the plaintiffs accident does not obviate the need for prior written notice (see Amabile v City of Buffalo, 93 NY2d 471, 476 [1999]; Passaro v City of Newburgh, 272 AD2d 385 [2000]; Sommer v Town of Hempstead, 271 AD2d 434 [2000]). Accordingly, the Supreme Court properly granted the Town’s motion for summary judgment dismissing the complaint.

The plaintiffs’ remaining contention is without merit. Santucci, J.P., Krausman, Schmidt and Adams, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.