Opinion
2011-12-27
Akiva LICHTMAN, et al., appellants, v. VILLAGE OF KIRYAS JOEL, respondent.
Annette G. Hasapidis, South Salem, N.Y., for appellants. Tarshis, Catania, Liberth, Mahon & Milligram, PLLC (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for respondent.
Annette G. Hasapidis, South Salem, N.Y., for appellants. Tarshis, Catania, Liberth, Mahon & Milligram, PLLC (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated December 6, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Akiva Lichtman (hereinafter the plaintiff) slipped and fell on a patch of ice in a municipal parking lot of the defendant, Village of Kiryas Joel, allegedly sustaining injuries. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. 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 ( see Village Law § 6–628; CPLR 9804). Thus, in order to defeat the Village's motion, the plaintiffs were required to come forward with admissible evidence raising a triable issue of fact as to whether the Village either created or exacerbated the icy condition through its affirmative negligent acts, or whether a special use conferred a special benefit on the Village ( see San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 919 N.Y.S.2d 459, 944 N.E.2d 1098; Petrillo v. Town of Hempstead, 85 A.D.3d 996, 925 N.Y.S.2d 660; Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1008, 895 N.Y.S.2d 208). The plaintiffs failed to meet that burden.
The failure to remove all of the snow or ice from a parking lot is not an affirmative act of negligence ( see Wohlars v. Town of Islip, 71 A.D.3d 1007, 898 N.Y.S.2d 59; Stallone v. Long Is. R.R., 69 A.D.3d 705, 894 N.Y.S.2d 65; Groninger v. Village of Mamaroneck, 67 A.D.3d 733, 888 N.Y.S.2d 205, affd. 17 N.Y.3d 125, 927 N.Y.S.2d 304, 950 N.E.2d 908). The plaintiffs failed to adduce any evidence that the patch of ice was created as a consequence of an affirmative act of negligence by the Village. The plaintiff's conclusory and speculative deposition testimony that a snow pile created by the Village's snow plowing efforts the day before the accident melted and refroze, was insufficient to raise a triable issue of fact ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129–130, 927 N.Y.S.2d 304, 950 N.E.2d 908; Lysohir v. County of Suffolk, 10 A.D.3d 638, 639, 781 N.Y.S.2d 693; Myrow v. City of Poughkeepsie, 3 A.D.3d 480, 481, 769 N.Y.S.2d 604).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the Village's motion for summary judgment dismissing the complaint.