Pirrone v. Metro N. Commuter R.R.

2022 NY Slip Op 02144

Exenia Pirrone, appellant, v. Metro North Commuter Railroad, etc., et al., defendants, Village of Mamaroneck, respondent.

Index No. 64107/17

Supreme Court of New York, Second Department

March 30, 2022

Cellino Law LLP, Garden City, NY (John Lavelle of counsel) for appellant.

Thomas K. Moore (Eric D. Feldman, Melville, NY [Dominic P. Zafonte] of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2019. The order granted the motion of the defendant Village of Mamaroneck for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Village of Mamaroneck for summary judgment dismissing the complaint insofar as asserted against it is denied.

The plaintiff allegedly was injured when she slipped and fell on ice on a sidewalk within the defendant Village of Mamaroneck on January 10, 2017, three days after a snowstorm. According to the deposition testimony of the Village's General Foreman of Parks, on January 7 and 8, 2017, employees of the Village Parks Department used snow blowers and shovels to clear the subject sidewalk of snow, to the extent that a path was created for people to walk. The snow was not removed, but was piled at the curb line, as close to the street as possible. On January 9 and 10, 2017, employees of the Village Parks Department were instructed to apply salt and sand to the subject sidewalk.

The plaintiff commenced this action the Village and others. The Village moved for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that it did not have prior written notice of the condition and that it did not affirmatively create the condition. The Supreme Court granted the motion. The plaintiff appeals.

"A municipality that has enacted a prior written notice provision 'may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies'" (Eisenberg v Town of Clarkstown, 172 A.D.3d 683, 683, quoting Palka v Village of Ossining, 120 A.D.3d 641, 641; see Poirier v City of Schenectady, 85 N.Y.2d 310, 313). Insofar as relevant to this appeal, "an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence" (Piazza v Volpe, 153 A.D.3d 563, 564; see Amabile v City of Buffalo, 93 N.Y.2d 471, 474; Seegers v Village of Mineola, 161 A.D.3d 910, 911).

"'[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings'" (Holleran v Incorporated Vil. of Floral Park, 189 A.D.3d 1370, 1371, quoting Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214; see Caballero v City of New York, 198 A.D.3d 713, 714). Here, the plaintiff alleged in the bill of particulars that the Village created the hazardous condition. The plaintiff contends that defendant created the icy condition by its affirmative negligent act of piling snow on both sides of the sidewalk, which snow then melted and refroze to create the condition. Therefore, to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the icy condition (see Holleran v Incorporated Vil. of Floral Park, 189 A.D.3d at 1371).

Although the defendant established, prima facie, that it lacked prior written notice of the ice condition, it failed to establish prima...