Opinion
2016–03026 Index No. 604776/14
05-09-2018
Eva SEEGERS, et al., respondents, v. VILLAGE OF MINEOLA, appellant.
Goldberg Segalla, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser ], of counsel), for appellant. McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for respondents.
Goldberg Segalla, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser ], of counsel), for appellant.
McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for respondents.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered March 11, 2016. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Eva Seegers (hereinafter Seegers) allegedly was injured when she slipped and fell on ice in a parking lot owned, operated, and maintained by the defendant, Village of Mineola. After Seegers, and her husband suing derivatively, commenced this action, the Village moved for summary judgment dismissing the complaint on the grounds that it did not receive prior written notice of the ice condition on which Seegers allegedly fell, and it did not create the condition. The Supreme Court denied the motion. The Village appeals.
A municipality that has enacted a prior written notice provision "may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies" ( Palka v. Village of Ossining, 120 A.D.3d 641, 641, 992 N.Y.S.2d 273 ; see Poirier v. City of Schenectady, 85 N.Y.2d 310, 313, 624 N.Y.S.2d 555, 648 N.E.2d 1318 ; Piazza v. Volpe, 153 A.D.3d 563, 564, 59 N.Y.S.3d 466 ; Larenas v. Incorporate Vil. of Garden City, 143 A.D.3d 777, 778, 39 N.Y.S.3d 204 ; Braver v. Village of Cedarhurst, 94 A.D.3d 933, 934, 942 N.Y.S.2d 178 ). Two exceptions to the prior written notice requirement have been recognized, "namely, where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality" ( Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [citation omitted]; see Loghry v. Village of Scarsdale, 149 A.D.3d 714, 715, 53 N.Y.S.3d 318 ; Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204; Braver v. Village of Cedarhurst, 94 A.D.3d at 934, 942 N.Y.S.2d 178 ).
" ‘[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings’ " ( Loghry v. Village of Scarsdale, 149 A.D.3d at 715, 53 N.Y.S.3d 318, quoting Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ; see Piazza v. Volpe, 153 A.D.3d at 564, 59 N.Y.S.3d 466 ; Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204; McManus v. Klein, 136 A.D.3d 700, 701, 24 N.Y.S.3d 205 ; Steins v. Incorporated Vil. of Garden City, 127 A.D.3d 957, 958, 7 N.Y.S.3d 419 ; Braver v. Village of Cedarhurst, 94 A.D.3d at 934, 942 N.Y.S.2d 178 ). In the complaint and bill of particulars, the plaintiffs alleged that the Village created the ice condition on which Seegers fell by plowing snow into large piles directly adjacent to parking areas and walkways, thereby blocking drains and allowing the snow to thaw and refreeze, and by failing to properly salt or sand the area (see generally San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 919 N.Y.S.2d 459, 944 N.E.2d 1098 ). Accordingly, the Village was required to demonstrate both that it did not have prior written notice of the ice condition in the subject parking lot and that it did not create that condition (see Piazza v. Volpe, 153 A.D.3d at 564, 59 N.Y.S.3d 466 ; Loghry v. Village of Scarsdale, 149 A.D.3d at 715, 53 N.Y.S.3d 318 ; Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204; McManus v. Klein, 136 A.D.3d at 701, 24 N.Y.S.3d 205; Steins v. Incorporated Vil. of Garden City, 127 A.D.3d at 958, 7 N.Y.S.3d 419 ; Braver v. Village of Cedarhurst, 94 A.D.3d at 934, 942 N.Y.S.2d 178 ).
Although the Village demonstrated that it did not receive written notice of an ice condition in the subject parking lot prior to the accident, it failed to demonstrate, prima facie, that it did not create the ice condition that allegedly caused Seegers to fall (see Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204; McManus v. Klein, 136 A.D.3d at 701, 24 N.Y.S.3d 205; Steins v. Incorporated Vil. of Garden City, 127 A.D.3d at 958, 7 N.Y.S.3d 419 ; Braver v. Village of Cedarhurst, 94 A.D.3d at 934, 942 N.Y.S.2d 178 ). The Village, therefore, failed to demonstrate its prima facie entitlement to judgment as a matter of law (see Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204; McManus v. Klein, 136 A.D.3d at 701, 24 N.Y.S.3d 205; Steins v. Incorporated Vil. of Garden City, 127 A.D.3d at 958, 7 N.Y.S.3d 419 ; Braver v. Village of Cedarhurst, 94 A.D.3d at 934, 942 N.Y.S.2d 178 ).
Accordingly, the Supreme Court properly denied the Village's motion for summary judgment dismissing the complaint, regardless of the sufficiency of the papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.