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ALTHOUGH THE TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, IT DID NOT DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT CREATE THE DANGEROUS CONDITION, THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the town did not have written notice of the dangerous condition, the town did not demonstrate it did not create the dangerous condition by piling snow that melted and re-froze:

… Since the plaintiff alleged that the defendant affirmatively created the allegedly dangerous ice condition through its snow removal operations, the defendant, in addition to establishing that it did not receive prior written notice, was also required, on its motion for summary judgment, to make a prima facie showing that it did not create the condition complained of … . …

A municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous ice condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement  … . The defendant’s evidence provided information about its general snow removal operations, but failed to show what the sidewalk abutting the accident site looked like immediately after it completed its snow removal operations. The defendant failed to establish, prima facie, that the 6 to 12 inches of snow that the plaintiff observed on the sidewalk, making it impassable, was not the product of its snow removal operations. The defendant also failed to submit any evidence as to what the temperature was from the time that it last performed its snow removal operations on January 24, 2016, and the time of the accident. Given that the defendant’s submissions failed to eliminate all triable issues of fact as to whether its snow removal efforts created the ice condition, the defendant’s motion for summary judgment dismissing the complaint should have been denied … . Eisenberg v Town of Clarkstown, 2019 NY Slip Op 03319, Second Dept 5-1-19

 

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