GRONINGER v. VILLAGE OF MAMARONECK (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated July 22, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff slipped and fell on a patch of ice in a municipal parking lot of the Village of Mamaroneck.   The Village demonstrated its prima facie entitlement to judgment as a matter of law by submitting proof that there was no prior written notice of the existence of the icy condition.   Contrary to the plaintiff's contention, the prior written notice requirements of Village Law § 6-628 and CPLR 9804 are applicable to a municipal parking lot (see Powell v. Town of Hempstead, 61 A.D.3d 950, 951, 877 N.Y.S.2d 468;  Peters v. City of White Plains, 58 A.D.3d 824, 825, 872 N.Y.S.2d 502;  San Marco v. Vil. of Mount Kisco, 57 A.D.3d 874, 876, 871 N.Y.S.2d 236;  Walker v. Incorporated Vil. of Freeport, 52 A.D.3d 697, 860 N.Y.S.2d 188;  Tuzzolo v. Town of Hempstead, 292 A.D.2d 446, 447, 738 N.Y.S.2d 692).   While the plaintiff's contention in this regard, premised on Walker v. Town of Hempstead, 84 N.Y.2d 360, 618 N.Y.S.2d 758, 643 N.E.2d 77 is not without some logical appeal, we are not persuaded that a departure from our long-standing precedents in this area is warranted.   The plaintiff failed to raise a triable issue of fact on the question of notice.   Neither actual nor constructive notice of a condition is sufficient to satisfy the requirement of prior written notice (see McCarthy v. City of White Plains, 54 A.D.3d 828, 829, 863 N.Y.S.2d 500;  Ferreira v. County of Orange, 34 A.D.3d 724, 725, 825 N.Y.S.2d 122;  Mahler v. Incorporated Vil. of Port Jefferson, 18 A.D.3d 450, 794 N.Y.S.2d 435).

 Since the defendant established its prima facie entitlement to judgment, the burden shifted to the plaintiff to show the applicability of one of the two exceptions to the prior written notice requirement.   The plaintiff had to show either that the Village affirmatively created the condition through an affirmative act of negligence that immediately resulted in the dangerous condition, or that a special use resulted in a special benefit to the Village (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).   The plaintiff failed to meet that burden.

 The failure to remove all the snow or ice from a parking lot is not an affirmative act of negligence (see Frullo v. Incorporated Vil. of Rockville Ctr., 274 A.D.2d 499, 500, 711 N.Y.S.2d 185;  Moore v. Village of Pelham, 263 A.D.2d 448, 692 N.Y.S.2d 698;  Alfano v. City of New Rochelle, 259 A.D.2d 645, 686 N.Y.S.2d 813;  Zwielich v. Incorporated Vil. of Freeport, 208 A.D.2d 920, 617 N.Y.S.2d 871).   The plaintiff failed to adduce any evidence that the patch of ice was created as an immediate consequence of an affirmative act of negligence by the Village.   The opinion offered by the plaintiff's expert was, at best, speculative, and was insufficient to raise a triable issue (see Robinson v. Trade Link Am., 39 A.D.3d 616, 617, 833 N.Y.S.2d 243;  see also Gershfeld v. Marine Park Funeral Home, Inc., 62 A.D.3d 833, 834, 879 N.Y.S.2d 549).