| San Marco v Village/Town of Mount Kisco |
| 2008 NY Slip Op 10150 [57 AD3d 874] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Dale R. San Marco et al., Respondents, v Village/Town ofMount Kisco, Appellant. |
—[*1] Michael Fuller Sirignano, Cross River, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order ofthe Supreme Court, Westchester County (Smith, J.), dated November 19, 2007, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is granted.
On February 5, 2005, at approximately 8:15 a.m., while exiting her sports utility vehicle in a publicparking lot owned and maintained by the defendant, the plaintiff Dale R. San Marco (hereinafter theplaintiff) allegedly slipped and fell on an accumulation of black ice on the surface of the parking lot,sustaining injuries. The plaintiff, with her spouse suing derivatively, commenced this action asserting acause of action alleging negligence. After joinder of issue, the defendant moved for summary judgmentdismissing the complaint on the ground that it had no prior written notice of any hazardous condition atthe parking lot as required by Village Law § 6-628 and Village of Mount Kisco Code §93-47. The plaintiff opposed, arguing that prior written notice was not an element of her negligenceclaim, and in any event, the affirmative negligence exception was applicable since the defendant createdthe black ice hazard through its negligent snow removal procedures by piling snow in an area adjacentto parking meters, rather than removing the snow. The plaintiffs alleged that the temperature fluctuationsbetween January 29, 2005 and February 5, 2005 resulted in the snow melting and refreezing, creating adangerous condition. The plaintiffs submitted, inter alia, photographs of the parking lot taken on the dayof the accident which the [*2]plaintiff averred showed piles of snownear parking meters near the accident site and a puddle of water forming in the area where, she alleged,there was black ice at the time of her accident. The Supreme Court denied the motion, finding that thedefendant failed to establish its entitlement to judgment as a matter of law on the ground that its snowremoval efforts had not caused or exacerbated the icy condition upon which the plaintiff alleges sheslipped and fell. Further, the court held that in any event, the plaintiffs raised a triable issue of fact as towhether the ice formed because the defendant was negligent in creating snow piles next to adjacentparking meters, rather than removing the snow from the parking lot. We reverse.
In general, where, as here, a notice statute is in effect (see Village Law § 6-628;Village of Mount Kisco Code § 93-47), a municipality cannot be held liable for injuries absentprior written notice of a dangerous or defective condition (see Amabile v City of Buffalo, 93NY2d 471, 474 [1999]; Gorman v Town ofHuntington, 47 AD3d 30, 34 [2007]). Further, a parking lot is considered a highway withinthe meaning of the notice statutes at issue (seeWalker v Incorporated Vil. of Freeport, 52 AD3d 697 [2008]; Shannon v Village of Rockville Ctr., 39AD3d 528 [2007]; Doherty v Town of Clarkstown, 233 AD2d 477, 478 [1996]).However, such liability may attach (1) "where the locality created the defect or hazard through anaffirmative act of negligence" or (2) "a 'special use' confers a special benefit upon the locality"(Amabile v City of Buffalo, 93 NY2d at 474; Gorman v Town of Huntington, 47AD3d at 35).
Contrary to the Supreme Court's determination, the defendant established, prima facie, through theaffidavit of its manager clerk, that it had not received prior written notice of the allegedly hazardouscondition of black ice in the parking lot as required by Village Law § 6-628 and Village ofMount Kisco Code § 93-47 (seeWalker v Incorporated Vil. of Freeport, 52 AD3d 697 [2008]).
In opposition, the plaintiffs failed to raise a triable issue of fact. To meet their burden, the plaintiffswere required to show that the defendant's alleged negligence " 'immediately result[ed] in the existenceof a dangerous condition' " (Yarborough vCity of New York, 10 NY3d 726, 728 [2008], quoting Oboler v City of New York, 8 NY3d 888, 889 [2007]; Bielecki v City of New York, 14 AD3d301, 301-302 [2005]). Viewing the evidence in the light most favorable to the nonmoving plaintiffs(see Wallice v Waterpointe at Oakdale Shores, 249 AD2d 383 [1998]), and even assumingthat the defendant's creation of snow piles adjacent to parking meters was negligent, the plaintiffs failedto raise a triable issue of fact as to the applicability of the affirmative negligence exception. According tothe deposition testimony of a foreman from the defendant's Highway and Sanitation Department(hereinafter the Highway Department), prior to the plaintiff's accident, the Highway Department lastplowed the parking lot on January 25, 2005. According to the report of the plaintiffs' meteorologicalexpert, melting and refreezing could not have begun until four days later, on January 29, 2005. Suchfacts do not rise to immediate creation, as it was the environmental factors of time and temperaturefluctuations that caused the allegedly hazardous condition, not the allegedly negligent creation of snowpiles (see Yarborough v City of New York,10 NY3d 726 [2008], affg 28 AD3d 650, 651 [2006]; Oboler v City of NewYork, 8 NY3d at 889; Marshall v Cityof New York, 52 AD3d 586 [2008]; Speach v Consolidated Edison Co. of N.Y., Inc., 52 AD3d 404 [2008];Bielecki v City of New York, 14 AD3d at 301-302; cf. Bown v Village of Lynbrook,23 AD2d 559 [1965], revd 17 NY2d 826 [1966]).
To the extent that Smith v County ofOrange (51 AD3d 1006 [2008]) may be read to hold otherwise, it should not be followed.Ritter, J.P., Miller, Dillon and McCarthy, JJ., concur.