28 U.S.C. § 1346(b) — §§
2671-2680, against defendants United States Postal Service and the United
States of America. The Village was also named a defendant in the lawsuit
under the supplemental jurisdiction set forth in 28 U.S.C. § 1367(a).
The Village moves for summary judgment pursuant to Rule 56 of the Fed.R.
of Civ. P. in its favor claiming the record does not show that it
breached a duty of care under New York law, plaintiff was contributorily
negligent and did not give the Village written notice of the defect
required by Fort Edward Village Law § 74-14, New York Village Law
6-628 and New York CPLR § 9804. Plaintiff and Defendants United
States Postal Service and the United States of America have entered
opposition to this motion.
Rule 56 of the Federal Rules of Civil Procedure permits summary
judgment where the evidence demonstrates that "there is no genuine issue
of any material fact and the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106
S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). More than a "disfavored
shortcut," summary judgment is an important procedure regarded as an
integral part of the Federal Rules as a whole, which are designed to
"secure the just, speedy and inexpensive determination of every action."
Celotex Corp. v. Catreet, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d
(1991)) (quoting Federal Rule of Civil Procedure 1). In determining
whether there is a genuine issue of material fact, a court must resolve
all ambiguities and draw inferences against the moving party. United
States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176
(1976) (per curiam). "[t]he non-movant cannot escape summary judgment by
merely vaguely asserting the existence of some unspecified disputed
facts, or defeat the motion through mere speculation or conjecture."
Western World Insurance Company v. Stack Oil Co., Inc., 922 F.2d 118, 121
(2d Cir. 1990). An issue of credibility is insufficient to preclude the
granting of summary judgment. Neither side can rely on conclusory
allegations or statements in affidavits. The disputed issue of fact must
be supported by evidence that would allow a "rational trier of fact to
find for the non-moving party." Mashusita Electric Industries Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d
538 (1986). Unsupported allegations will not suffice to create a triable
issue of fact. Goenga v. March of Dimes Birth Defects Foundation,
51 F.3d 14, 18 (2d Cir. 1995). "Supposition does not create a genuine
issue of material fact, instead it creates a false issue, the demolition
of which is the primary goal of summary judgment." Hedberg v. Indiana
Bell Telephone Company, Inc., 47 F.3d 928, 929 (7th Cir. 1995). Nor will
factual disputes that are irrelevant to the disposition of the suit under
governing law preclude any entry of summary judgment. Anderson, 477 U.S.
at 247, 106 S.Ct. 2509.
When a municipality, though under no obligation or duty to do so, plows
a path through fallen snow that has accumulated on its sidewalks, it must
use reasonable care in so doing or be held liable in negligence if the
removal creates a hazard or dangerous condition or increases an existing
danger. Glick v. City of New York,139 A.D.2d 303, 526 N.Y.S.2d 464, 465
(1st Dept. 1988). Removing snow and ice does not subject the Village to
liability simply because the removal is incomplete or because it exposes
a dangerous condition that it did not create. Marlib Corp, 24 N.Y.2d 817,
300 N.Y.S.2d 593 (1959) (per curiam).
Therefore, liability cannot be
based on the mere fact that ice was present some hours after the snow was
removed, because the ice may have resulted from a variety of causes.
Connolly v. Brusch, 149 A.D. 772, 134 N.Y.S. 141 (2d Dept. 1912); Kelly
v. Rose, 265 A.D. 1068, 38 N.Y.S.2d 527 (2d Dept), aff'd. 291 N.Y. 611
(1943). If this was not true, pedestrians would be compelled to slog
through heavy snow because property owners would be loath to clear any
path at all lest they expose themselves to serious liability stemming from
their snow removal efforts. It is not negligence to fail to remove all
ice and snow. Bricca v. New York Telephone Co., 37 A.D.2d 564,
322 N.Y.S.2d 682 (3rd Dept. 1971). Only where the unsafe condition was
created by the snow remover's "own wrongful act" such as where the
removal was performed so as to create a dangerous condition thereby
increasing the natural hazard, is the removal entity held liable. Roark
v. Hunting, 24 N.Y.2d 479, 301 N.Y.S.2d 59 (1969).
Dan Gosline, an employee of the Village, plowed the sidewalk in front
of the Post Office on the day in question. In his affidavit concerning
the plowing which is included in defendant Village's motion papers, he
states at 7. "The 4-foot swath that I cleared on the sidewalk in front to
the United States Post Office on Broadway in the Village was clear of
snow and ice when I finished [plowing]." (Ex. K p. 1 ¶ 7). Defendant
Village's Statement of Material Facts at 16, states "The 4-foot swath
that Mr. Gosline cleared on the sidewalk in front of the United States
Post Office on Broadway in the Village of Fort Edward was clear of snow
and ice when he finished." Neither plaintiff nor the government
defendants controverted this statement concerning the condition of the
sidewalk after it had been plowed by the Village. When a party has moved
for summary judgment on the basis of asserted facts supported as required
by Fed.R.Civ.P. 56(e) and has, in accordance with local court rules,
served a concise statement of the material facts as to which it contends
there exists no genuine issue of fact to be tried, those facts will be
deemed admitted unless properly controverted by the non-moving party.
Dusananko v. Maloney, 964 F.2d 149, 154 (2d Cir. 1992).
The court, thus, adopts defendant Village's material facts as admitted
by plaintiff that the plowed sidewalk was free of ice and snow after the
Village plowed it. The court now considers the moving party's second
burden, establishing that, in light of the undisputed facts, it is
entitled to summary judgment. Upon review of the defendant Village's
motion, supporting evidence, and the applicable law, the court concludes
that no genuine issue of fact exists and that, pursuant to Fed.R.Civ.P.
56(c), the Village is entitled to summary judgment as a matter of law.
Accordingly, defendant Village of Fort Edward's summary judgement
motion is GRANTED, and the complaint is dismissed as against this