PLAINTIFF DID NOT RAISE A QUESTION OF FACT WHETHER THE COUNTY WAS AFFIRMATIVELY NEGLIGENT IN THIS ICE AND SNOW SLIP AND FALL CASE; THEREFORE THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this slip and fall case should have been granted. The county demonstrated it did not have written notice of the condition and was not affirmatively negligent:

The complaint alleged that a dangerous or defective condition existed as a result of defendant’s negligent snow and ice removal operations and procedures, and its failure to provide “a means of ingress/egress with a handrail.” …

Defendant established its entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the allegedly dangerous or defective condition as required by Chautauqua County Local Law No. 4-09 … . In opposition, plaintiff failed to raise a triable issue of fact whether such prior written notice was given … . Further, plaintiff failed to raise an issue of fact regarding the applicability of an exception to the prior written notice requirement, i.e., as relevant here, that defendant “affirmatively created the defect through an act of negligence” … . A municipality” ‘may not be held liable for the mere passive failure to remove all snow and ice’ ” or to install a handrail because “[s]uch acts are acts of omission rather than affirmative acts of negligence” … . Here, plaintiff’s submissions establish only defendant’s alleged “nonfeasance, as opposed to affirmative negligence,” and the exception to the prior written notice requirement for affirmative acts of negligence therefore does not apply … . Brockway v County of Chautauqua, 2020 NY Slip Op 05659, Fourth Dept 10-9-20