SHANNON v. VILLAGE OF ROCKVILLE CENTRE (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated January 3, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff Barbara Shannon allegedly slipped and fell on ice in a parking lot owned by the defendant Village of Rockville Centre.   The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint finding that the defendant was not given prior written notice of the alleged icy condition as required by Village of Rockville Centre Code § 66-1.

 Village of Rockville Centre Code § 66-1 provides that “[n]o civil action shall be brought or maintained against the Village of Rockville Centre for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective [or] dangerous ․ in consequence of the existence or accumulation of snow or ice ․ unless written notice of the existence of such condition ․ had theretofore actually been given to the Board of Trustees of the Village of Rockville Centre.”   Contrary to the plaintiffs' contention, a parking lot is considered a highway within the meaning of local ordinances such as Village of Rockville Centre Code § 66-1 (see Doherty v. Town of Clarkstown, 233 A.D.2d 477, 478, 650 N.Y.S.2d 31;  Mendes v. Whitney-Floral Realty Corp., 216 A.D.2d 540, 541-542, 629 N.Y.S.2d 63;  Stratton v. City of Beacon, 91 A.D.2d 1018, 1019, 457 N.Y.S.2d 893).

The defendant established its prima facie entitlement to judgment as a matter of law by submitting an affidavit from the Deputy Superintendent of Public Works stating that his search of the defendant's records revealed no prior written notice of an icy condition at the parking lot (see Gianna v. Town of Islip, 230 A.D.2d 824, 825, 646 N.Y.S.2d 707;  Goldberg v. Town of Hempstead, 156 A.D.2d 639, 640, 549 N.Y.S.2d 138).

Once the defendant satisfied its burden showing a lack of prior written notice, the plaintiffs were required to come forward with admissible evidence to raise an issue of fact as to whether written notice was given or whether the defendant created or exacerbated the alleged icy condition through its affirmative negligent acts (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  cf. Zwielich v. Incorporated Vil. of Freeport, 208 A.D.2d 920, 921, 617 N.Y.S.2d 871).   The conclusory and speculative affidavit of the plaintiffs' expert was insufficient to raise a triable issue of fact (see Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Myrow v. City of Poughkeepsie, 3 A.D.3d 480, 481, 769 N.Y.S.2d 604;  Mendes v. Whitney-Floral Realty Corp., supra at 542, 629 N.Y.S.2d 63).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The plaintiffs' remaining contentions are without merit (see Amabile v. City of Buffalo, supra at 473-474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Holt v. County of Tioga, 56 N.Y.2d 414, 419-420, 452 N.Y.S.2d 383, 437 N.E.2d 1140;  Carlino v. City of Albany, 118 A.D.2d 928, 929, 499 N.Y.S.2d 814;  Fullerton v. City of Schenectady, 285 App.Div. 545, 548, 138 N.Y.S.2d 916, affd. 309 N.Y. 701, 128 N.E.2d 413).