| Abramo v City of Mount Vernon |
| 2013 NY Slip Op 01052 [103 AD3d 760] |
| February 20, 2013 |
| Appellate Division, Second Department |
| Gloria Abramo et al., Respondents, v City ofMount Vernon et al., Appellants. |
—[*1] Scaffidi & Associates, New York, N.Y. (Anthony J. Scaffidi of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Westchester County (Tolbert, J.), entered November28, 2011, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Gloria Abramo (hereinafter the injured plaintiff) allegedly sustainedpersonal injuries as a result of a slip-and-fall accident on the sidewalk outside of aparking garage on West Broad Street in Mount Vernon. She allegedly fell due to thesnow and icy conditions on the sidewalk, which was owned and maintained by thedefendant City of Mount Vernon and related entities (hereinafter collectively the Citydefendants). The City defendants moved for summary judgment dismissing the complainton the ground that they did not receive prior written notice of the snow and ice conditionwhich allegedly caused the injured plaintiff to slip and fall pursuant to section 265 of theCharter of the City of Mount Vernon, which requires such notice for injuries "sustainedsolely in consequence of the existence of snow or ice upon any sidewalk, crosswalk,street, parking lot or parking garage." The City defendants also contended that a stormwas in progress at the time of the accident. The Supreme Court denied the motion.
To meet their initial burden of demonstrating their entitlement to judgment as amatter of law on the ground that they had no prior written notice of the alleged defectiveor dangerous condition pursuant to a prior written notice statute, the City defendantswere required to submit proof through affidavit or deposition testimony that they did notreceive the notice required by the statute (see Masotto v Village of Lindenhurst, 100 AD3d 718[2012]; Ali v Village ofPleasantville, 95 AD3d 796 [2012]; LiFrieri v Town of Smithtown, 72 AD3d 750 [2010]).Here, the City defendants failed to meet their prima facie burden based on the priorwritten notice law, section 265 of the Charter of the City of Mount Vernon. The Citydefendants' submission of sworn deposition testimony that arguably demonstrated thatthe City may not have maintained records of snow and ice complaints, as required byGeneral Municipal Law § 50-g, raised a triable issue of fact. Accordingly, theSupreme Court properly denied the City defendants' motion insofar as it was based on theprior written notice statute, without [*2]regard to thesufficiency of the plaintiffs' opposition papers (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d373, 384 [2005]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Martinez vKhaimov, 74 AD3d 1031 [2010]; see generally Miller v Village of E. Hampton, 98 AD3d1007 [2012]; Braver vVillage of Cedarhurst, 94 AD3d 933 [2012]).
The Supreme Court also properly denied the City defendants' motion insofar as itwas based on the storm in progress rule. "Under the 'storm in progress rule,' a landowner'generally cannot be held liable for injuries sustained as a result of slippery conditionsthat occur during an ongoing storm, or for a reasonable time thereafter' " (Weller v Paul, 91 AD3d945, 947 [2012], quoting Mazzella v City of New York, 72 AD3d 755, 756 [2010]).Here, the City defendants failed to demonstrate their prima facie entitlement to judgmentas a matter of law based on the storm in progress rule. The City defendants' submissionsin support of their motion included climatological data from nearby locations that wasinconsistent and also contradicted the plaintiff's deposition testimony. Since the evidencesubmitted by the City defendants was in conflict and, thus, could not establish, as amatter of law, that the storm in progress rule applied herein (see Kantor v Leisure GlenHomeowners Assn., Inc., 95 AD3d 1177, 1177 [2012]; Weller v Paul,91 AD3d at 947; Lester vAckerman, 82 AD3d 847, 847 [2011]), the Supreme Court properly denied theCity defendants' motion for summary judgment on this basis.
The City defendants' remaining contentions need not be reached in light of ourdetermination, or are improperly raised for the first time on appeal. Balkin, J.P., Hall,Austin and Cohen, JJ., concur.