Opinion
August 1, 1994
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the order entered June 30, 1992, is affirmed insofar as appealed from; and it is further,
Ordered that the appeal from the order entered December 15, 1992, is dismissed; and it is further,
Ordered that the defendant Village of Pleasantville is awarded one bill of costs.
Village Law § 6-628 provides, in pertinent part, that in order to maintain an action against a village for injuries sustained as a consequence of a defective sidewalk, written notice of the defect must have been filed with the Village Clerk. In support of its motion for summary judgment, the Village submitted proof in evidentiary form establishing that the Village Clerk had not received such notice. The plaintiffs' claim that certain other municipal departments may have received notice of the defect was insufficient to defeat the Village's showing of lack of actual notice to the Village Clerk (see, Conlon v. Village of Pleasantville, 146 A.D.2d 736). Nor did the plaintiffs succeed in raising a triable issue of fact, based upon submissions in evidentiary form, that the Village either affirmatively created the defect (see, Tyschak v. Incorporated Vil. of Westbury, 193 A.D.2d 670), or had or should have had knowledge of the defective condition because it had either inspected the area or was performing work on it shortly before the accident, thereby rendering written notice unnecessary (cf., Giganti v. Town of Hempstead, 186 A.D.2d 627; Klimek v. Town of Ghent, 114 A.D.2d 614). Thus, the Supreme Court properly granted the municipal defendant's motion for summary judgment.
The plaintiffs failed to offer a valid excuse for not submitting the additional facts upon which the motion denominated as one to renew and reargue was based to the court in opposition to the original summary judgment motion (see, Foley v. Roche, 68 A.D.2d 558). Thus, the motion was in actuality for reargument, the denial of which is not appealable (see, King v. Rockaway One Co., 202 A.D.2d 395; Thrift Assns. Serv. Corp. v. Legend of Irvington Joint Venture, 152 A.D.2d 666, 668). In any event, the plaintiffs' submission was not evidentiary in nature, but instead was based upon hearsay, and therefore was insufficient to defeat a motion for summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Lawrence, J.P., O'Brien, Copertino and Friedmann, JJ., concur.