| Wohlars v Town of Islip |
| 2010 NY Slip Op 02551 [71 AD3d 1007] |
| March 23, 2010 |
| Appellate Division, Second Department |
| William J. Wohlars et al., Respondents, v Town of Islip,Appellant. |
—[*1] John L. Juliano, P.C., East Northport, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Suffolk County (Emerson, J.), dated June 15, 2009, 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 forsummary judgment dismissing the complaint is granted.
On December 7, 2005, at approximately 7:00 a.m., the plaintiff William J. Wohlars(hereinafter the plaintiff) allegedly slipped and fell on ice or snow on a sidewalk located in thesoutheast parking lot (hereinafter the subject parking lot) of the Ronkonkoma Station of the LongIsland Rail Road. The plaintiff and his wife, suing derivatively, commenced this action againstthe defendant, Town of Islip, inter alia, to recover damages for personal injuries he allegedlysustained as a result of the fall.
According to the plaintiff's testimony given at the hearing pursuant to General MunicipalLaw § 50-h and at his subsequent deposition, it had snowed the day before the incident.However, the plaintiff did not recall how long it snowed, how much snow fell, or when itstopped snowing. There also was no evidence of any prior snowfall in the weeks immediatelypreceding the day of the incident.
The plaintiff further testified that, as he traversed the subject parking lot after exiting his car,he approached a two-foot wide pathway, on a sidewalk adjacent to a roadway separating thatsidewalk from another sidewalk immediately adjacent to the train platform. The plaintiff statedthat he observed some snow and ice to the left and right of the pathway. In his affidavitsubmitted in opposition to the defendant's motion for summary judgment dismissing thecomplaint, the plaintiff averred that "the center of the walkway was covered with a sheet of iceapproximately 2-3 feet in width" and was not treated with any salt or ice melting agents. Theplaintiff also averred in his affidavit that he walked to the side of the walkway to avoid the ice.As recounted by the plaintiff in his affidavit, he stepped to the right of the path, slipped on iceconcealed by what he described as "light snow," and fell to the left, twisting his ankle. Theplaintiff did not recall the depth of the snow.[*2]
The Town established its prima facie entitlement tojudgment as a matter of law by submitting the affidavit of Peter Kletchka, formerly a publicworks project supervisor and, at the time he was deposed, a Deputy Commissioner of the Town'sDepartment of Public Works, stating that his search of the Town's records revealed no priorwritten notice of the alleged icy condition at the subject parking lot (see Town Law§ 65-a [2]; Code of Town of Islip § 47A-3; Shannon v Village of RockvilleCtr., 39 AD3d 528 [2007]; Gianna v Town of Islip, 230 AD2d 824, 825 [1996];Linder v Town of Babylon, 187 AD2d 568 [1992]; Goldberg v Town ofHempstead, 156 AD2d 639, 640 [1989]; see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]).
Once the Town satisfied its burden of showing a lack of prior written notice, the plaintiffs, inorder to defeat the Town's motion, were required to come forward with admissible evidence toraise a triable issue of fact as to whether written notice was given, whether the defendant createdor exacerbated the alleged icy condition through its affirmative negligent acts, or whether aspecial use conferred a special benefit on the Town (see Amabile v City of Buffalo, 93NY2d 471, 474 [1999]; Shannon v Village of Rockville Ctr., 39 AD3d at 529;Gianna v Town of Islip, 230 AD2d at 825; see also Rosenthal v Village ofQuogue, 205 AD2d 745, 745-746 [1994]; Albanese v Town of Hempstead, 176AD2d 697 [1991]; cf. Zwielich v Incorporated Vil. of Freeport, 208 AD2d 920, 921[1994]).
Contrary to the plaintiffs' contentions, they failed to demonstrate that the allegedly icycondition was created by the Town's affirmative negligence (see Amabile v City ofBuffalo, 93 NY2d at 474; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603,604 [2005]; Galante v Village of Sea Cliff, 13 AD3d 577 [2004]; Corey v Town ofHuntington, 9 AD3d 345 [2004]), nor was there any claim of special use. The plaintiff,having testified that there was no indication of snow and ice removal on the sidewalk where hefell, failed to present any evidence to substantiate the speculative assertions that the Townundertook snow abatement measures before his fall, and that such measures created orexacerbated the alleged icy condition (see Trainor v Dayton Seaside Assoc. No. 3, 282AD2d 524 [2001]; Kennedy v C & C New Main St. Corp., 269 AD2d 499 [2000];Jefferson v Long Is. Coll. Hosp., 234 AD2d 589, 589 [1996]; Kay v FlyingGoose, 203 AD2d 332, 332-333 [1994]). Rather, Kletchka's testimony that the Town had nosnow removal responsibilities for the subject parking lot, and did not perform or cause to beperformed any snow removal activities at the location of the accident, went unrefuted. As theTown correctly argues, even if it had been responsible for snow removal in the subject parkinglot, to the extent that the plaintiffs contend that the failure to remove all the snow and iceconstituted an affirmative act of negligence, this contention is without merit (see Frullo vIncorporated Vil. of Rockville Ctr., 274 AD2d 499, 500 [2000]; Alfano v City of NewRochelle, 259 AD2d 645, 646 [1999]; Zwielich v Incorporated Vil. of Freeport, 208AD2d 920, 921 [1994]).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the Town's motion for summaryjudgment dismissing the complaint. Skelos, J.P., Florio, Hall and Austin, JJ., concur.