FASSLER v. TOWN OF CLARKSTOWN (2000)

In an action to recover damages for personal injuries, etc., the defendant Town of Clarkstown appeals from so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated March 11, 1999, as, upon reargument and renewal, adhered to a prior determination in an order of the same court, dated May 8, 1998, denying its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On February 6, 1995, the infant plaintiff, Melanie Fassler (hereinafter the plaintiff), was injured when she slipped and fell in a roadway abutting a sidewalk in New City. The plaintiff alleges that the efforts of the defendant Town of Clarkstown to remove snow and ice from the sidewalk rendered the area more dangerous and, as a result, she was compelled to divert her path and walk in the adjacent street which was also icy.   The Town admits that as a result of a storm commencing on February 3, 1995, it had ordered both the street and the sidewalk in question to be plowed, and that this was done on February 4. Under the circumstances of this case, there is a question of fact as to whether the Town's affirmative action exacerbated the natural hazard, and whether that was a proximate cause of the plaintiff's injuries (see generally, Verdino v. Alexandrou, 253 A.D.2d 553, 677 N.Y.S.2d 368;  Marrone v. Verona, 237 A.D.2d 805, 654 N.Y.S.2d 481;  Jiminez v. Cummings, 226 A.D.2d 112, 640 N.Y.S.2d 61).   Accordingly, the Supreme Court properly denied the Town's motion for summary judgment.

The Town's remaining contentions are without merit.

MEMORANDUM BY THE COURT.