GORMAN GORMAN v. City of Fulton, Respondent.

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Supreme Court, Appellate Division, Fourth Department, New York.

Shannon GORMAN, an Infant, by Her Father and Natural Guardian, Kevin GORMAN, and Kevin Gorman, Individually, Appellants, v. Peter RAVESI, et al., Defendants, City of Fulton, Respondent.

Decided: December 31, 1998

Present:  DENMAN, P.J., HAYES, BALIO, BOEHM and FALLON, JJ. Finkelstein, Levine, Gittelsohn by Julio Urrutia, George Kohl, Newburgh, for Plaintiffs-Appellants. Woods, Oviatt, Gilman, Sturman & Clarke, L.L.P. by Bernadette Weaver-Catalana, Rochester, for Defendant-Respondent.

In this action for damages arising out of personal injuries sustained by plaintiff Shannon Gorman, plaintiffs allege that defendant City of Fulton (City) was negligent in failing to remove promptly a large accumulation of snow from a City sidewalk, forcing Shannon to walk onto the adjoining roadway, where she was struck by an automobile operated by defendant Peter Ravesi.   Supreme Court granted the City's motion for summary judgment on the ground that the City had not been furnished with prior written notice of the sidewalk's condition, as required by section C230 (B) of the Charter of the City of Fulton.

 There are limited exceptions to statutory prior notice requirements that obviate the necessity of pleading and proving prior written notice (see, Blake v. City of Albany, 63 A.D.2d 1075, 405 N.Y.S.2d 832, affd. on other grounds 48 N.Y.2d 875, 424 N.Y.S.2d 358, 400 N.E.2d 300;  see also, Adam v. Town of Oneonta, 217 A.D.2d 894, 629 N.Y.S.2d 857;  Klimek v. Town of Ghent, 114 A.D.2d 614, 494 N.Y.S.2d 453;  cf., Lalley v. Adam, Meldrum & Anderson Co., 186 A.D.2d 1083, 588 N.Y.S.2d 500).   In opposing the motion for summary judgment, plaintiffs asserted as an exception to the general rule that the City's affirmative acts of negligence created or caused the defective condition (see, Kiernan v. Thompson, 73 N.Y.2d 840, 537 N.Y.S.2d 122, 534 N.E.2d 39;  Bisulco v. City of New York, 186 A.D.2d 84, 588 N.Y.S.2d 26).   The City's failure to remove snow and ice constitutes nonfeasance (see, Radicello v. Village of Spring Val., 115 A.D.2d 466, 495 N.Y.S.2d 702;  see also, Piscione v. County of Oneida, 159 A.D.2d 982, 552 N.Y.S.2d 759), but a municipality's mere nonfeasance, as opposed to affirmative negligence, does not invoke the exception (see, Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459;  Pittel v. Town of Hempstead, 154 A.D.2d 581, 546 N.Y.S.2d 411).

 Plaintiffs' other contention regarding the City's actual notice is raised for the first time on appeal and is therefore not preserved for our review (see, Walker v. Huber, 254 A.D.2d 734, 678 N.Y.S.2d 561;  Matter of Rodgers v. Crumb, 242 A.D.2d 874, 662 N.Y.S.2d 662).   Similarly, plaintiffs' challenge to the police photograph of the accident site is not preserved for our review.

Order unanimously affirmed without costs.

MEMORANDUM: