Opinion
832 CA 19-01813
10-09-2020
Bryan G. BROCKWAY, Plaintiff-Respondent, v. COUNTY OF CHAUTAUQUA, Defendant-Appellant.
WEBSTER SZANYI LLP, BUFFALO (PETER L. VEECH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WEBSTER SZANYI LLP, BUFFALO (PETER L. VEECH OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he slipped and fell on a patch of snow and ice located outside the Chautauqua County Courthouse. The complaint alleged that a dangerous or defective condition existed as a result of defendant's negligent snow and ice removal operations and procedures, and its failure to provide "a means of ingress/egress with a handrail." We agree with defendant that Supreme Court erred in denying its motion for summary judgment dismissing the complaint.
Defendant established its entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the allegedly dangerous or defective condition as required by Chautauqua County Local Law No. 4-09 (see Brick v. City of Niagara Falls , 121 A.D.3d 1591, 1592, 994 N.Y.S.2d 224 [4th Dept. 2014] ). In opposition, plaintiff failed to raise a triable issue of fact whether such prior written notice was given (see Scovazzo v. Town of Tonawanda , 83 A.D.3d 1600, 1601, 921 N.Y.S.2d 591 [4th Dept. 2011] ). Further, plaintiff failed to raise an issue of fact regarding the applicability of an exception to the prior written notice requirement, i.e., as relevant here, that defendant "affirmatively created the defect through an act of negligence" ( Yarborough v. City of New York , 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ; see Groninger v. Village of Mamaroneck , 17 N.Y.3d 125, 129-130, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011] ; see generally Amabile v City of Buffalo , 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ). A municipality " ‘may not be held liable for the mere passive failure to remove all snow and ice’ " or to install a handrail because "[s]uch acts are acts of omission rather than affirmative acts of negligence" ( Alfano v. City of New Rochelle , 259 A.D.2d 645, 645, 686 N.Y.S.2d 813 [2d Dept. 1999] ; see Davidson v. Town of Chili , 35 A.D.3d 1246, 1247, 827 N.Y.S.2d 795 [4th Dept. 2006], lv denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007] ; Gorman v. Ravesi , 256 A.D.2d 1134, 1135, 684 N.Y.S.2d 386 [4th Dept. 1998] ). Here, plaintiff's submissions establish only defendant's alleged "nonfeasance, as opposed to affirmative negligence," and the exception to the prior written notice requirement for affirmative acts of negligence therefore does not apply ( Gorman , 256 A.D.2d at 1135, 684 N.Y.S.2d 386 ).