| Stallone v Long Is. R.R. |
| 2010 NY Slip Op 00245 [69 AD3d 705] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Kerri Stallone, Respondent, v Long Island Rail Road,Respondent, and Incorporated Village of Lindenhurst, Appellant. |
—[*1] Decolator, Cohen & DiPrisco, LLP, Garden City, N.Y. (John V. Decolator of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Incorporated Village ofLindenhurst appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Pastoressa, J.), dated August 30, 2008, as denied its motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the motion of the defendant Incorporated Village of Lindenhurst for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it is granted.
On the morning of February 13, 2006, approximately 12 hours after the end of a majorsnowstorm, the plaintiff allegedly slipped and fell on an accumulation of snow or ice in a parkinglot at the Lindenhurst station of the defendant Long Island Rail Road (hereinafter the LIRR). Theparking lot was owned by the LIRR and operated and maintained by the defendant IncorporatedVillage of Lindenhurst. The plaintiff commenced this action against the LIRR and the Villageseeking to recover damages for her injuries. Eventually, the Village moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it on theground that the plaintiff failed to establish that it had prior written notice of the defect, asrequired under Village Law § 6-628 and the Code of the Incorporated Village ofLindenhurst § 116-1. In the order appealed from, the Supreme Court denied the motion,finding, inter alia, that there was an issue of fact as to whether the Village created the dangerouscondition by negligently plowing the parking lot. We reverse the order insofar as appealed from.
The Village established its prima facie entitlement to judgment as a matter of law bysubmitting proof that it had not received prior written notice of the dangerous condition allegedlypresented by snow and ice in the parking lot (see Village Law § 6-628; Groninger v Village of Mamaroneck,67 AD3d 733 [2009]). The burden thus shifted to the plaintiff to establish the applicabilityof an exception to the prior written notice requirement—either that the Village madespecial use of the parking lot which resulted in a special benefit to it or that the Village'saffirmative act of negligence immediately resulted in the dangerous [*2]condition (see Groninger v Village of Mamaroneck, 67 AD3d 733 [2009]; cf. Yarborough v City of New York,10 NY3d 726, 728 [2008]). The plaintiff failed to meet that burden. Generally, amunicipality may not be held liable for its failure to remove all snow and ice from a particulararea, inasmuch as such a failure is not an affirmative act of negligence (see Groninger v Village ofMamaroneck, 67 AD3d 733 [2009]; Frullo v Incorporated Vil. of RockvilleCtr., 274 AD2d 499, 500 [2000]). Moreover, there is no evidence here that the Village'splowing efforts immediately resulted in a dangerous condition or exacerbated a previouslyexisting dangerous condition. The opinion offered by the plaintiff's expert was addressed, ineffect, to the deficiencies in the Village's efforts to remove the snow, rather than to itsaffirmative creation or exacerbation of a dangerous condition. Consequently, the Supreme Courtshould have granted the Village's motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it.
The plaintiff's remaining contention is without merit. Fisher, J.P., Angiolillo, Dickerson andLeventhal, JJ., concur.