| Masotto v Village of Lindenhurst |
| 2012 NY Slip Op 07641 [100 AD3d 718] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Linda Masotto, Appellant, v Village of Lindenhurst, AlsoKnown as Village of Lindenhurst, a Municipal Corporation,Respondent. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP (Congdon, Flaherty, O'Callaghan, Reid,Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser], of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) ajudgment of the Supreme Court, Suffolk County (Gazzillo, J, ), entered May 13, 2011, which,upon an order of the same court entered April 13, 2011, granting the defendant's motion forsummary judgment dismissing the complaint, is in favor of the defendant and against her,dismissing the complaint, and (2) an order of the same court entered October 4, 2011, whichdenied her motion for leave to renew and reargue her opposition to the defendant's motion forsummary judgment dismissing the complaint.
Ordered that the appeal from so much of the order entered October 4, 2011, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the order entered October 4, 2011, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
The appeal from so much of the order entered October 4, 2011, as denied that branch of theplaintiff's motion which was for leave to reargue must be dismissed, as no appeal lies from anorder denying reargument.
On December 24, 2008, the plaintiff allegedly was injured when she slipped and fell in amunicipal parking lot owned by the defendant. At the time of the plaintiff's fall, a prior writtennotice law was in effect (see Village Law § 4-402 [g]; Code of Village ofLindenhurst § 116-1 [amending Village Law § 6-628]).[*2]
"A municipality that has adopted a 'prior written noticelaw' cannot be held liable for a defect within the scope of the law absent the requisite writtennotice, unless an exception to the requirement applies" (Forbes v City of New York, 85 AD3d 1106, 1107 [2011]; seePoirier v City of Schenectady, 85 NY2d 310 [1995]; Hanover Ins. Co. v Town of Pawling, 94 AD3d 1055, 1056 [2012];Abano v Suffolk County CommunityColl., 66 AD3d 719, 719 [2009]; Katsoudas v City of New York, 29 AD3d 740, 741 [2006]). Where,as here, a municipality has enacted a prior written notice law, it may not be subjected to liabilityfor injuries caused by a defect which comes within the ambit of the law unless it has receivedwritten notice of the alleged defect or dangerous condition, or an exception to the written noticerequirement applies (see Cuebas v Cityof Yonkers, 97 AD3d 779, 780 [2012]; Braver v Village of Cedarhurst, 94 AD3d 933, 934 [2012])."Recognized exceptions to the prior written notice requirement exist where the municipalitycreated the defect or hazard through an affirmative act of negligence, or where a special useconfers a special benefit upon it" (Millerv Village of E. Hampton, 98 AD3d 1007, 1008 [2012]).
Here, the defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not receive prior written notice of the frozen snow plow track uponwhich the plaintiff allegedly slipped and fell, as required by section 116-1 of the Code of theVillage of Lindenhurst, and that it did not create the dangerous condition through an affirmativeact of negligence (see Cuebas v City of Yonkers, 97 AD3d at 780).
In opposition, the plaintiff failed to raise a triable issue of fact, as her reliance on San Marco v Village/Town of MountKisco (16 NY3d 111 [2010]) is misplaced. In contrast to the situation presented inSan Marco, there is no evidence that the defendant's snow removal efforts created anynew, dangerous condition. The frozen snow plow track upon which the plaintiff allegedly fellwas not caused by the defendant's method of snow clearance, but was simply a remnant left bythe snow removal machinery during the plowing operations of December 19, 2008. Moreover,the alleged failure by the defendant to remove every bit of snow and ice from the parking lot onDecember 19, 2008, is not actionable (see Zwielich v Incorporated Vil. of Freeport, 208AD2d 920, 921 [1994]), as a municipality's failure to remove all snow and ice from a parking lotis passive in nature and does not constitute an affirmative act of negligence excepting it fromprior written notice requirements (seeWohlars v Town of Islip, 71 AD3d 1007 [2010]; Stallone v Long Is. R.R., 69 AD3d 705 [2010]; Groninger v Village of Mamaroneck,67 AD3d 733 [2009], affd 17 NY3d 125 [2011]; Zwielich v Incorporated Vil. ofFreeport, 208 AD2d at 921).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Leventhal, Austin andRoman, JJ., concur.