CROSS v. TOWN OF HEMPSTEAD (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered October 10, 2019.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In 2015, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she slipped and fell on ice in a municipal parking lot owned and maintained by the defendant, Town of Hempstead.  In her bill of particulars, the plaintiff alleged, inter alia, that the Town “created the condition.”  After issue was joined, the Town moved for summary judgment dismissing the complaint.  In an order entered October 10, 2019, the Supreme Court granted the Town's motion.  The plaintiff appeals.

“A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” (Torres v. Incorporated Vil. of Rockville Ctr., 195 A.D.3d 974, 975, 146 N.Y.S.3d 519;  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).  “Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality” (Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908, quoting Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).

Here, in moving for summary judgment dismissing the complaint, the Town “met its burden of establishing that it did not receive prior written notice of the icy condition, thereby shifting ․ the burden of demonstrating either that a question of fact existed in that regard or that one of the Amabile exceptions applied” (Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;  see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  O'Sullivan v. City of Long Beach, ––– A.D.3d ––––, ––– N.Y.S. ––––, 2022 N.Y. Slip Op. 05700, 2022 WL 6847552 [2d Dept.];  Smith v. City of New York, ––– A.D.3d ––––, ––– N.Y.S. ––––, 2022 N.Y. Slip Op. 05226, 2022 WL 4361183 [2d Dept.]).  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Town's snow removal operations affirmatively created the alleged icy condition that caused the plaintiff to fall (see Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;  Smith v. City of New York, ––– A.D.3d ––––, ––– N.Y.S. ––––, 2022 N.Y. Slip Op. 05226).  Accordingly, the Supreme Court properly granted the Town's motion for summary judgment dismissing the complaint.

BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and DOWLING, JJ., concur.