| Lichtman v Village of Kiryas Joel |
| 2011 NY Slip Op 09601 [90 AD3d 1001] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Akiva Lichtman et al., Appellants, v Village of Kiryas Joel,Respondent. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC (Congdon, Flaherty, O'Callaghan,Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Orange County (Bartlett, J.), dated December 6, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Akiva Lichtman (hereinafter the plaintiff) slipped and fell on a patch of ice in amunicipal parking lot of the defendant, Village of Kiryas Joel, allegedly sustaining injuries. TheSupreme Court granted the defendant's motion for summary judgment dismissing the complaint.The Village demonstrated its prima facie entitlement to judgment as a matter of law bysubmitting proof that there was no prior written notice of the existence of the icy condition(see Village Law § 6-628; CPLR 9804). Thus, in order to defeat the Village'smotion, the plaintiffs were required to come forward with admissible evidence raising a triableissue of fact as to whether the Village either created or exacerbated the icy condition through itsaffirmative negligent acts, or whether a special use conferred a special benefit on the Village (see San Marco v Village/Town of MountKisco, 16 NY3d 111 [2010]; Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Kiszenik v Town of Huntington, 70AD3d 1007, 1008 [2010]). The plaintiffs failed to meet that burden.
The failure to remove all of the snow or ice from a parking lot is not an affirmative act ofnegligence (see Wohlars v Town ofIslip, 71 AD3d 1007 [2010]; Stallone v Long Is. R.R., 69 AD3d 705 [2010]; Groninger v Village of Mamaroneck,67 AD3d 733 [2009], affd 17NY3d 125 [2011]). The plaintiffs failed to adduce any evidence that the patch of ice wascreated as a consequence of an affirmative act of negligence by the Village. The plaintiff'sconclusory and speculative deposition testimony that a snow pile created by the Village's snowplowing efforts the day before the accident melted and refroze, was insufficient to raise a triableissue of fact (see Groninger v Village of Mamaroneck, 17 NY3d 125, 129-130 [2011]; Lysohir v County of Suffolk, 10 AD3d638, 639 [2004]; Myrow v City ofPoughkeepsie, 3 AD3d 480, 481 [2004]).[*2]
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the Village's motion for summaryjudgment dismissing the complaint. Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur.