Despite Absence of Written Notice of the Dangerous Condition, There Was a Question of Fact Whether the Village Created the Dangerous Condition by Its Snow-Removal/Whether the Condition Was Open and Obvious Speaks Only to Comparative Negligence

The Second Department determined there was a question of fact whether the municipality created the dangerous sidewalk-condition by its snow-removal efforts.  The fact that the condition was open and obvious raised only a comparative-fault issue. So, despite the absence of written notice (to the village) of the dangerous condition, Supreme Court properly denied the village’s motion for summary judgment:

Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect or a dangerous condition which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition prior to the occurrence of the subject accident, or an exception to the written notice requirement applies … . “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the snow and ice upon which the infant plaintiff slipped and fell, as required by section 116-1(D) of the Code of the Village of Hempstead. However, the defendant raised a triable issue of fact as to whether the snow and ice condition upon which the infant plaintiff slipped was created by the Village’s snow removal efforts … . Lopez-Calderone v Lang-Viscogliosi, 2015 NY Slip Op 03505, 1st Dept 4-29-15