(Tepeu v. Nabrizny, 129 A.D.3d 935 [2d Dept 2015]) Although the Village of Highland Falls Municipal Code placed a duty on the abutting landowner to keep the sidewalk free from snow and ice, it did not expressly make the landowner liable in tort for failure to perform that duty. (See, Rodriguez v. County of Westchester, 138 A.D.3d 713, 716 [2d Dept 2016]) Plaintiff argues the exception to that rule: the owner of the abutting property will be held liable when he or she, or someone on his or her behalf, undertook snow and ice removal which made the natural conditions more hazardous.

However, an owner of property abutting a public sidewalk who undertakes snow and ice removal, but in doing so, makes "the natural conditions more hazardous" may be liable for any resulting injury. Rodriguez v. County of Westchester, 138 A.D.3d 713, 29 N.Y.S.3d 418 (2d Dep't 2016); Herskovic v. 515 Ave. J Tenants Corp., 124 A.D.3d 582, 997 N.Y.S.2d 907 (2d Dep't 2015)(property owners who engage in snow and ice removal must act with reasonable care in order to avoid creating a hazardous condition or exacerbating a natural hazard). In support of their motion, the Defendants have demonstrated, prima facie, that no ordinance or statute placing an obligation on them to maintain the sidewalk expressly makes them liable for injuries caused by a failure to perform that duty.

An owner of real property is under no obligation to remove snow and ice that naturally accumulates upon the sidewalk that abuts his or her property, and liability will not result unless it is shown that the owner made the sidewalk more hazardous through negligent removal of the snow (Palopoli v City of New York, 305 A.D.2d 388, 388-89 [2d Dept 2003]). Thus, there is a question of fact as to Palal, as the owner of property abutting a public sidewalk will be held liable where it, or someone on its behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous (Rodriguez v City of Westchester, 138 A.D.3d 713, 716 [2d Dept 2016]). Accordingly, Palal's motion for summary judgment is denied.

That evidence was sufficient under CPLR 317 to establish St. Andrews's lack of personal notice of the summons in time to defend (see Li Xian v Tat Lee Supplies Co., Inc., 126 A.D.3d 424, 424 [1st Dept 2015]). St. Andrews also demonstrated a meritorious defense in that the Yonkers City Code "does not expressly make the landowner liable for failure to perform" the duty to clean snow and ice from the sidewalk, and an abutting landowner is not liable in the absence of such a statute for failure to clear snow, ice and dirt (Rodriguez v County of Westchester, 138 A.D.3d 713, 716 [2d Dept 2016]; see also Smalley v Bemben, 12 N.Y.3d 751, 752 [2009]; Yonkers City Code § 103-8).

Here, the defendant submitted, in support of her motion, an affirmed report from her expert, who found a significant limitation in the range of motion in the cervical region of Alies's spine. Accordingly, the defendant failed to establish, prima facie, that Alies did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Rivera v Losee, 138 AD3d 713, 713; Mercado v Mendoza, 133 AD3d 833, 834; Miller v Bratsilova, 118 AD3d 761, 761). Since the defendant did not sustain her prima facie burden, it is unnecessary to determine whether the papers submitted in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted by Alies. AUSTIN, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.

"An abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when the owner or lessee either created the condition or caused the condition to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee and expressly makes the owner or the lessee liable for injuries caused by a breach of that duty" (Hevia v Smithtown Auto Body of Long Is., Ltd., 91 AD3d 822, 822-823; see Morelli v Starbucks Corp., 107 AD3d 963, 964; Petrillo v Town of Hempstead, 85 AD3d 996, 997). In support of her motion, Cho demonstrated, prima facie, that there was no ordinance or statute placing an obligation on her to maintain the sidewalk abutting her property at the time of the subject accident (see Rodriguez v County of Westchester, 138 AD3d 713; Rodriguez v City of Yonkers, 106 AD3d 802), and that she neither created the defect nor caused the defect to occur because of a special use of the sidewalk. In opposition, the plaintiff failed to raise a triable issue of fact.

Here, Myers established her prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the accident occurred on a public sidewalk and that she did not create the defect, make special use of the sidewalk, or violate any statute or ordinance charging her with a duty to maintain the sidewalk and making her liable for injuries caused by a breach of that duty (see Maya v Town of Hempstead, 127 AD3d 1146, 1147-1148; Dalder v Incorporated Vil. of Rockville Ctr., 116 AD3d at 909). While Yonkers City Code § 103-1 requires landowners to maintain sidewalks abutting their property in a safe condition, it does not impose tort liability upon them for injuries caused by a violation of that duty (see Rodriguez v County of Westchester, 138 AD3d 713, 716; Rodriguez v City of Yonkers, 106 AD3d 802, 803; Brun v City of Yonkers, 269 AD2d 346, 347). In opposition, the plaintiff failed to raise a triable issue of fact.

Although the defendant established, prima facie, that it lacked prior written notice of the icy condition, it failed to establish, prima facie, that it did not create that condition through an affirmative act of negligence. While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence (see Rodriguez v. County of Westchester, 138 A.D.3d 713, 29 N.Y.S.3d 418 ; Lima v. Village of Garden City, 131 A.D.3d at 948, 16 N.Y.S.3d 249 ; Groninger v. Village of Mamaroneck, 67 A.D.3d 733, 888 N.Y.S.2d 205 ), a municipality's act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement (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 ; Smith v. County of Orange, 51 A.D.3d 1006, 858 N.Y.S.2d 385 ; see also Viera v. Rymdzionek, 112 A.D.3d 915, 977 N.Y.S.2d 390 ). The defendant's evidence demonstrated that the temperature rose and remained above freezing for an extended period of time on the day before the plaintiff's accident , after the defendant created the snow piles.

The defendants submitted, inter alia, the affirmed report of Edward A. Toriello, an orthopedic surgeon, who reviewed the plaintiff's medical records and performed a physical examination of the plaintiff at the request of the defendants. Upon examining the plaintiff, Toriello found that the plaintiff had significant limitations in the range of motion in the cervical and lumbar regions of his spine. Toriello's conclusion that the limitations were self-imposed was not adequately explained or substantiated with objective medical evidence (see Mercado v Mendoza, 133 AD3d 833, 834; Uvaydov v Peart, 99 AD3d 891; India v O'Connor, 97 AD3d 796, 796; see also Rivera v Losee, 138 AD3d 713). Moreover, the defendants also submitted a medical report of one of the plaintiff's own treating physicians who opined that the plaintiff's limitations in the range of motion in the cervical and lumbar regions of his spine were causally related to the subject motor vehicle accident (see Balram v CJ Transp., LLC, 127 AD3d 796, 797; Positko v Krawiec, 6 AD3d 517, 518). In light of our determination, we need not address the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third person (see, Church v Callanan Indus., 99 N.Y.2d 104 [2002]; Maltese v Metropolitan Transp. Auth., 179 A.D.3d 780; Rodriguez v County of Westchester, 138 A.D.3d 713 [ 2d Dept 2016]). However, there are three exceptions to this general rule: (1) where a contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the Plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see, Espinal v Melville Snow Contrs., 98 N.Y.2d 136; Stiver v Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253 [2007]; Randazzo v Consolidated Edison of N.Y., Inc., 177 A.D.3d 796 [2019]; Reeves v Welcome Parking, Ltd. Liab. Co., 175 A.D.3d 633 [2019]; Pinto v Walt Whitman Mall, LLC, 175 A.D.3d 541; Espeleta v Synergy Resources, Inc., 172 A.D.3d 1320 [2019]; Rothstein v Elohim, 133 A.D.3d 839 [ 2015]).