Opinion
Index No. EF2018-65953
04-20-2020
Fawn MILLINGTON and Dale M. Millington, Plaintiffs, v. INCORPORATED TOWN OF JOHNSBURG, New York, Defendant.
Law Office of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for plaintiffs. Kelly & Leonard, LLP, Ballston Spa (Thomas E. Kelly of counsel), for defendant
Law Office of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for plaintiffs.
Kelly & Leonard, LLP, Ballston Spa (Thomas E. Kelly of counsel), for defendant
Robert J. Muller, J.
This complaint alleges a February 16, 2018 incident in which plaintiff Fawn Millington (hereinafter plaintiff) slipped and fell on a sidewalk at the entrance to the Senior Center located at 3584 State Route 28, North Creek in the Town of Johnsburg, Warren County. At the time of the incident plaintiff was an employee of Warren County and was working at the meal site at the Senior Center. She was on her way to work at approximately 6:50 A.M. on this Tuesday morning. The bill of particulars alleges that the fall was due to the Town's negligence in not attending to an accumulation of snow and ice in the area where plaintiff was caused to walk in order to enter her workplace. Discovery has been completed and defendant now moves for summary judgment based upon the alternate affirmative defenses of the failure to comply with the municipality's prior written notice statute (see Town Law § 65-a ), or a storm in progress.
In plaintiff's deposition she describes the incident date as January 16, 2018. The bill of particulars does the same.
In support of the motion the Town Clerk avers that there is no record of receipt of any prior written notice and that she is responsible for maintaining such information. Thus, turning first to the prior written notice issue, the Court observes that " ‘a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given’ " ( Seelinger v. Town of Middletown , 79 AD3d 1227, 1228 [2010], quoting Smith v. Village of Hancock , 25 AD3d 975, 975 [2006] ; see Friedland v. County of Warren , 61 AD3d 1138, 1139 [2009] ; General Municipal Law § 50-e [4] ; Town Law § 65-a ). Indeed, Town Law § 65-a provides that
"[n]o civil action shall be maintained against any town or town superintendent of highways for damages or injuries to person or property sustained by reason of any defect in its sidewalks or in consequence of the existence of snow or ice upon any of its sidewalks, unless such sidewalks have been constructed or are maintained by the town or the superintendent of highways of the town pursuant to statute, nor shall any action be maintained for damages or injuries to person or property sustained by reason of such defect or in consequence of such existence of snow or ice unless written notice thereof, specifying the particular place , was actually given to the town clerk or to the town superintendent of highways, and there was a failure or neglect to cause such defect to be remedied, such snow or ice to be removed, or to make the place otherwise reasonably safe within a reasonable time after the receipt of such notice" [emphasis added].
"The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by ... plaintiff[ ] in the pleadings and bill of particulars" ( Lima v. Village of Garden City , 131 AD3d 947, 948 [2015] ; see Seegers v. Village of Mineola , 161 AD3d 910, 911 [2018] ). Here defendant's evidence is sufficient to meet its initial burden demonstrating entitlement to summary judgment (see Friedland v. County of Warren , 61 AD3d at 1139 ; Gagnon v. City of Saratoga Springs , 51 AD3d 1096, 1097 [2008],lv denied 11 NY3d 706 [2008] ).
Although there are exceptions to this prior written notice requirement, the failure to properly remove snow and ice from a sidewalk does not constitute the type of affirmative negligence required to excuse noncompliance with the Town's notice requirement (see Lugo v. County of Essex , 260 AD2d 711, 712 [1999] ; Lang v. County of Sullivan , 184 AD2d 981, 982 [1992] ; Buccellato v. County of Nassau , 158 AD2d 440, 442 [1990], lv denied 76 NY2d 703 [1990] ). Stated otherwise, the mere failure to clean the ice and snow from a public sidewalk is insufficient to establish the type of affirmative negligence required to bring the action outside of Town Law § 65-a (see D'Imperio v. Village of Sidney , 14 AD2d 647, 648 [1961], affd 12 NY2d 927 [1963] ; compare Siddon v. Fishman Co. , 65 AD2d 832 [1978] ).
In plaintiff's opposing affidavit she references her deposition testimony description of a prior written notice as follows:
"Significantly, prior to my fall on January 16, 2018, I complained verbally and in writing to [the Town Clerk] about the problem with the failure to clear the sidewalk and parking lot before we were to arrive at work [and] specifically, in November of 2017 I gave [to that same Town Clerk] a written list of things that needed to be corrected, which included my concerns with the snow and ice hazard due to their failure to properly plow and clean the snow ‘before we get here.’ "
The Court has also examined Exhibit "D" to plaintiff's opposition, which is the purported written notice and accepts the factual claim that it was hand-delivered to the Town Clerk in November of 2017. This writing, however — when examined alongside the requirements of Town Law § 65-a — makes no attempt at "specifying a particular place" nor does it describe specific complaints on a specific date and at a specific time. The reasonable period of time the municipality has to correct the described condition must be measured from when the notice is provided. That is impossible here. Accordingly, defendant is entitled to summary judgment with respect to the allegation of negligent removal of snow and ice.
It is unnecessary to consider that aspect of defendant's motion premised upon its affirmative defense of there having been a storm in progress, as the same has been rendered moot based upon the foregoing.
Therefore, having considered the supporting Affirmation of Thomas E. Kelly, Esq. with Exhibits "A" through "K" attached thereto, dated December 11, 2019; the supporting Memorandum of Law of Thomas E. Kelly, Esq., dated December 11, 2019; the opposing Affirmation of Michael S. Martin, Esq. with Exhibits "A" through "E" attached thereto, dated February 12, 2020; the opposing Affidavit of Fawn Millington, sworn to February 12, 2020; and the reply Affirmation of Thomas E. Kelly, Esq., dated February 19, 2020, it is hereby
ORDERED that defendant's motion for summary judgment is granted in its entirety; and it is further
ORDERED that the complaint is dismissed; and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated December 12, 2019 and the above-referenced submissions. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the other parties in accordance with CPLR 5513.