| Palka v Village of Ossining |
| 2014 NY Slip Op 05848 [120 AD3d 641] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| David Palka et al.,Respondents-Appellants, v Village of Ossining, Appellant-Respondent, et al.,Respondents. |
Hodges Walsh & Slater LLP, White Plains, N.Y. (Paul E. Svensson of counsel),for appellant-respondent.
Roger L. Esposito, White Plains, N.Y., for respondents-appellants.
Thomas M. Bona, P.C., White Plains, N.Y. (Michael Flake of counsel), forrespondents Chi His Tan and Atlantic Bar & Restaurant Corp.
In an action to recover damages for personal injuries, etc., the defendant Village ofOssining appeals from so much of an order of the Supreme Court, Westchester County(Smith, J.), dated February 21, 2013, as denied its cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and theplaintiffs cross-appeal, as limited by their brief, from so much of the same order asgranted that branch of motion of the defendants Chi His Tan and Atlantic Bar &Restaurant Corp. which was for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, and the crossmotion of the defendant Village of Ossining for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it is granted; and it isfurther,
Ordered that the order is affirmed insofar as cross-appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant Village of Ossining,payable by the plaintiffs, and one bill of costs is awarded to the defendants Chi His Tanand Atlantic Bar & Restaurant Corp., payable by the plaintiffs.
On February 7, 2009, at approximately 10:45 p.m., the plaintiff David Palka(hereinafter the injured plaintiff) allegedly slipped and fell on an icy condition located onthe sidewalk, near the curbline, adjacent to 84 Croton Avenue, in the Village ofOssining. The injured plaintiff, and his wife suing derivatively, commenced this actionagainst the Village, and Chi His Tan and Atlantic Bar & Restaurant Corp.(hereinafter together the Atlantic defendants), the alleged owners of the premisesabutting the sidewalk, averring, inter alia, that they were negligent in their snow removalefforts.
[*2] Where, as here, a municipality hasenacted a prior written notice law, it may not be subjected to liability for injuries causedby a dangerous condition which comes within the ambit of the law unless it has receivedprior written notice of the alleged defect or dangerous condition, or an exception to theprior written notice requirement applies (see Poirier v City of Schenectady, 85NY2d 310 [1995]; Cuebas vCity of Yonkers, 97 AD3d 779, 780 [2012]; Hanover Ins. Co. v Town of Pawling, 94 AD3d 1055, 1056[2012]; Braver v Village ofCedarhurst, 94 AD3d 933, 934 [2012]). "Recognized exceptions to the priorwritten notice requirement exist where the municipality created the defect or hazardthrough an affirmative act of negligence, or where a special use confers a special benefitupon it" (Miller v Village of E.Hampton, 98 AD3d 1007, 1008 [2012]).
On its cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it, the Village made a prima facie showing ofentitlement to judgment as a matter of law by providing evidence that it lacked priorwritten notice of the allegedly dangerous icy condition, as required by Village Law§ 6-628 (seeMoncrieffe v City of White Plains, 115 AD3d 915 [2014]; Keating v Town of Oyster Bay,111 AD3d 604, 605 [2013]). In opposition, the plaintiffs failed to raise a triableissue of fact (see Moncrieffe v City of White Plains, 115 AD3d at 917;Keating v Town of Oyster Bay, 111 AD3d at 605). Accordingly, the SupremeCourt should have granted the Village's cross motion for summary judgment.
Contrary to the plaintiffs' contention, the Supreme Court properly granted that branchof the Atlantic defendants' motion which was for summary judgment dismissing thecomplaint insofar as asserted against them. "Unless a statute or ordinance clearly imposesliability upon an abutting landowner, only a municipality may be held liable for thenegligent failure to remove snow and ice from a public sidewalk" (Hilpert v Village of Tarrytown,81 AD3d 781, 781 [2011]; see Smalley v Bemben, 12 NY3d 751 [2009]; Schwint v Bank St. Commons,LLC, 74 AD3d 1312 [2010]; Ferguson v Shu Ham Lam, 74 AD3d 870 [2010]; Braun v Weissman, 68 AD3d797 [2009]). Although section 229-6 of the Code of the Village of Ossining(hereinafter the Village Code) requires a landowner to remove snow and ice fromabutting public sidewalks, it does not specifically impose tort liability for a breach of thatduty (see Hilpert v Village of Tarrytown, 81 AD3d at 781). "In the absence of astatute or ordinance imposing liability, the owner of property abutting a public sidewalkwill be held liable only where it, or someone on its behalf, undertook snow and iceremoval efforts which made the naturally occurring conditions more hazardous"(id. at 782; see Schwint v Bank St. Commons, LLC, 74 AD3d at 1313;Ferguson v Shu Ham Lam, 74 AD3d at 871; Braun v Weissman, 68AD3d at 798). In their pleadings, the plaintiffs did not allege that the Atlantic defendantscreated the icy condition. Rather, the pleadings alleged that the Atlantic defendants werenegligent in, inter alia, failing to remove snow and ice from the sidewalk. Since theAtlantic defendants established that section 229-6 of the Village Code did not imposetort liability upon them for a failure to remove snow and ice from the sidewalk, theydemonstrated their prima facie entitlement to judgment as a matter of law (see Marx v Great Neck ParkDist., 92 AD3d 925 [2012]).
In opposition, the plaintiffs failed to raise a triable issue of fact. In their oppositionpapers, for the first time, the plaintiffs alleged that the Atlantic defendants were negligentbecause they created the condition alleged. A plaintiff cannot, for the first time inopposition to a motion for summary judgment, raise a new or materially different theoryof recovery against a party from those pleaded in the complaint and the bill of particulars(see Mezger v WyndhamHomes, Inc., 81 AD3d 795 [2011]; Pinn v Baker's Variety, 32 AD3d 463 [2006]; Yaeger vUCC Constructors, 281 AD2d 990, 991 [2001]; Otonoga v City of NewYork, 234 AD2d 592, 593 [1996]; cf. Rosse-Glickman v Beth Israel Med.Ctr.-Kings Hwy. Div., 309 AD2d 846 [2003]; Orros v Yick Ming YipRealty, 258 AD2d 387, 388 [1999]). Therefore, the Supreme Court properly grantedthat branch of the Atlantic defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against them. Mastro, J.P., Roman,Hinds-Radix and LaSalle, JJ., concur.