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

James FRULLO, et al., Respondents, v. INCORPORATED VILLAGE OF ROCKVILLE CENTRE, Appellant.

Decided: July 24, 2000

ANITA R. FLORIO, J.P., DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, and ROBERT W. SCHMIDT, JJ. Curtis, Vasile, Devine & McElhenny, Merrick, N.Y. (Hugh J. Larkin of counsel), for appellant.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Carter, J.), entered September 27, 1999, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiffs commenced this action against the defendant Incorporated Village of Rockville Centre (hereinafter the Village) to recover damages for injuries allegedly sustained by the plaintiff James Frullo when he slipped and fell on snow and ice that had accumulated upon a road owned and maintained by the Village.   The Village sought summary judgment on the ground that it had not had prior written notice of the alleged hazardous condition (see, Village Law § 341-a).   The plaintiffs opposed the motion on the ground that the Village had created the allegedly hazardous condition through an affirmative act of negligence.

 The Supreme Court erred in denying the Village's motion for summary judgment.   The Village established a prima facie case that it did not have prior written notice of the alleged condition, which is a condition precedent to maintaining an action against it based on a hazardous snow or ice condition on its streets or sidewalks (see, Village Law § 341-a;  Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Brooks v. Village of Babylon, 251 A.D.2d 526, 674 N.Y.S.2d 726;  Sloan v. Village of Hempstead, 223 A.D.2d 632, 636 N.Y.S.2d 852;  see also, CPLR 3212 [b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   While notice is not required where the Village created the condition though an affirmative act of negligence (see, Amabile v. City of Buffalo, supra, at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Mayer v. Town of Brookhaven, 266 A.D.2d 360, 698 N.Y.S.2d 312), the evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact on that issue (see, CPLR 3212[b];  Zuckerman v. City of New York, supra, at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   It is well settled that a municipality may not be held liable for its failure to remove all snow and ice from a particular area, since such a failure is not an affirmative act of negligence (see, 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;  Woll v. Village of Rockville Centre, 205 A.D.2d 683, 613 N.Y.S.2d 640).   The remaining acts of the Village alleged by the plaintiffs were either unsubstantiated by the record or did not constitute affirmative acts of negligence.


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