Opinion
November 26, 1984
Appeal from the Supreme Court, Westchester County (Beisheim, J.).
Order reversed insofar as appealed from, on the law, with costs, defendant's motion for summary judgment granted and complaint dismissed with prejudice.
Plaintiffs instituted this action as a result of a fall owing to defendant's alleged failure to "properly" clean snow and ice from a sidewalk. It is undisputed that defendant received no prior notice of this condition as required by section 65-a Town of the Town Law and section 6-628 Village of the Village Law. In opposition to defendant's motion for summary judgment, plaintiffs alleged only that defendant "had apparently attempted to clean [the sidewalk] and did so in an improper manner". Defendant argues that the affidavit of plaintiff Frances Ritacco containing this allegation was untimely served upon it in violation of CPLR 2214 and 2103 and local court rules (22 NYCRR 780.7 [f]) and should not have been considered by Special Term. The lateness of this affidavit, however, was not brought to Special Term's attention and defendant failed to indicate that it was prejudiced by its consideration.
Nonetheless, plaintiffs failed to establish a triable issue of fact sufficient to defeat a motion for summary judgment. At best, plaintiff Frances Ritacco's statement that "defendant apparently attempted to clean [the sidewalk] and did so in an improper manner" is merely a "conclusory allegation" and not a "bona fide issue raised by evidentiary facts" ( Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231; see, also, Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 N.Y.2d 285, 290; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.10).
Furthermore, 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 section \ 65-a Town of the Town Law and section 6-628 Village of the Village Law ( Stratton v City of Beacon, 91 A.D.2d 1018; D'Imperio v Village of Sidney, 14 A.D.2d 647, 648, aff'd. 12 N.Y.2d 927; cf. Siddon v Fishman Co., 65 A.D.2d 832).
Accordingly, defendant's motion for summary judgment should have been granted and the complaint dismissed with prejudice. Boyers, J.P., Rubin, Lawrence and Eiber, JJ., concur.