| Ali v Village of Pleasantville |
| 2012 NY Slip Op 03385 [95 AD3d 796] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Wasim S. Ali, Respondent, v Village of Pleasantville,Appellant, et al., Defendants. |
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Omrani & Taub, P.C., New York, N.Y. (Isaac A. Arasteh of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Village of Pleasantvilleappeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Liebowitz, J.), entered October 7, 2011, as denied that branch of its motion which wasfor summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Village of Pleasantville which was for summary judgmentdismissing the complaint insofar as asserted against it is granted.
The plaintiff commenced this action against, among others, the Village of Pleasantville torecover damages for personal injuries allegedly sustained when he slipped and fell on a sidewalkduring a snowstorm. The Village moved for, among other relief, summary judgment dismissingthe complaint insofar as asserted against it. The Supreme Court, inter alia, denied that branch ofthe Village's motion which was for summary judgment dismissing the complaint insofar asasserted against it. The Village appeals.
The Village demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it by submitting proof that there was no priorwritten notice of the existence of the allegedly dangerous condition (see Code of Villageof Pleasantville, ch 155, art VI, § 155-36; CPLR 9804; see also Lichtman v Village of Kiryas Joel, 90 AD3d 1001, 1001[2011]; Wohlars v Town of Islip, 71AD3d 1007, 1008 [2010]). In addition, the Village submitted, among other things, anaffidavit from a meteorologist and the plaintiff's own testimony, which demonstrated that theplaintiff slipped and fell while the storm was still in progress (see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005];Mazzella v City of New York, 72AD3d 755, 756 [2010]; DeStefanov City of New York, 41 AD3d 528, 529 [2007]). Since, under the storm-in-progressrule, the Village generally cannot be held liable for injuries sustained as a result of slipperyconditions that occur during an ongoing storm, or for a reasonable time thereafter, the Villageestablished, prima facie, its entitlement to summary judgment on this ground as well (seeSolazzo v New York City Tr. Auth., 6 NY3d at 735; Mazzella v City of New York,72 AD3d at 756; DeStefano v City of New York, [*2]41AD3d at 529).
Once the Village satisfied its burden of showing a lack of prior written notice, the plaintiff, inorder to defeat the Village's motion, was required to come forward with admissible evidence toraise a triable issue of fact as to whether written notice was given, whether the Village created orexacerbated the allegedly dangerous condition through its affirmative negligent acts, or whether aspecial use conferred a special benefit on the Village (see San Marco v Village/Town of Mount Kisco, 16 NY3d 111[2010]; Lichtman v Village of Kiryas Joel, 90 AD3d at 1001; Wohlars v Town ofIslip, 71 AD3d at 1008). Furthermore, in light of the Village's prima facie showing that theaccident occurred while a storm was in progress, "the burden shifted to the plaintiff to raise atriable issue of fact as to whether the precipitation from the storm in progress was not the causeof his accident" (Meyers v Big SixTowers, Inc., 85 AD3d 877, 877 [2011]). To do so here, the plaintiff was required todemonstrate the existence of a triable issue of fact as to whether the snow abatement effortsengaged in by the Village exacerbated the natural hazard created by the snowstorm (see Salvanti v Sunset Indus. ParkAssoc., 27 AD3d 546, 546-547 [2006]; Chaudhry v East Buffet & Rest., 24 AD3d 493, 494 [2005]).
Contrary to the Supreme Court's conclusion, the plaintiff failed to raise a triable issue of factas to whether the Village created or exacerbated the allegedly dangerous condition through anaffirmative negligent act during the course of its efforts to abate the effects of the snowstorm.The Village's alleged failure to remove snow that had fallen during the course of the storm and itsalleged failure to apply salt or sand to the sidewalk, do not constitute affirmative acts ofnegligence (see Lichtman v Village of Kiryas Joel, 90 AD3d at 1001; Wohlars vTown of Islip, 71 AD3d at 1008; Zwielich v Incorporated Vil. of Freeport, 208 AD2d920, 921 [1994]; Grant v Incorporated Vil. of Lloyd Harbor, 180 AD2d 716, 717 [1992];Buccellato v County of Nassau, 158 AD2d 440, 441 [1990]; cf. Salvanti v SunsetIndus. Park Assoc., 27 AD3d at 546-547; Chaudhry v East Buffet & Rest., 24 AD3dat 494). Furthermore, owing to the fact that the snowstorm was ongoing at the time of theplaintiff's accident, the Village had no duty to remove snow that accumulated after it undertooksnow-abatement efforts, and the plaintiff failed to demonstrate a triable issue of fact as towhether an affirmative act of snow abatement undertaken by Village made the condition of thesidewalk more hazardous than it already was (see Spicehandler v City of New York, 303NY 946 [1952]; Trainor v Dayton Seaside Assoc. No. 3, 282 AD2d 524, 524-525 [2001];Kennedy v C & C New Main St. Corp., 269 AD2d 499, 499-500 [2000]; Verdino vAlexandrou, 253 AD2d 553, 553-554 [1998]; Jefferson v Long Is. Coll. Hosp., 234AD2d 589, 589-590 [1996]; Kay v Flying Goose, 203 AD2d 332, 332-333 [1994];Oley v Village of Massapequa Park, 198 AD2d 272 [1993]; Herrick v Grand UnionCo., 1 AD2d 911 [1956]). Accordingly, that branch of the Village's motion which was forsummary judgment dismissing the complaint insofar as asserted against it should have beengranted. Angiolillo, J.P., Dickerson, Leventhal and Miller, JJ., concur.