- May 30, 2017
Carnell T. Foskey, County Attorney, Mineola, NY (Nicholas
Vevante of counsel), for appellant.
& Grey, LLP, Farmingdale, NY (Sherman B. Kerner of
counsel), for plaintiffs-respondents.
Abamont & Associates, Garden City, NY (Evan B. Cohen of
counsel), for defendant-respondent Mary Volpe.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP,
Carle Place, NY (Patrick M. Murphy of counsel), for
defendants-respondents Steven Descovich and Maureen
C. BALKIN, J.P. LEONARD B. AUSTIN SHERI S. ROMAN HECTOR D.
DECISION & ORDER
from an order of the Supreme Court, Nassau County (Denise L.
Sher, J.), entered March 3, 2015. The order, insofar as
appealed from, denied the motion of the County of Nassau for
summary judgment dismissing the amended complaint and all
cross claims insofar as asserted against it.
that the order is affirmed insofar as appealed from, with one
bill ofcosts payable to the plaintiffs and the defendant Mary
Volpe appearing separately and filing separate briefs.
February 23, 2011, the plaintiff Rose Ann Piazza (hereinafter
Piazza) was walking on the sidewalk on the eastbound side of
Old Country Road about 100 feet east of Floral Avenue in
Plainview, New York. Due to accumulated snow obstructing the
sidewalk, she allegedly was forced to walk on the roadway and
was then struck by a vehicle owned and operated by the
defendant Mary Volpe.
Piazza, and her husband suing derivatively, commenced this
action against, among others, Volpe and the County of Nassau.
In relevant part, the plaintiffs alleged that the
County's negligent plowing of snow created or contributed
to the obstruction of the sidewalk, which exposed Piazza to
the danger of walking in the roadway. The County moved for
summary judgment dismissing the amended complaint and all
cross claims insofar as asserted against it, contending that
it did not receive prior written notice of the dangerous
condition that allegedly caused Piazza's accident, and
did not create the dangerous condition through an affirmative
act of negligence or, alternatively, that its alleged
negligence was not a proximate cause of the accident.
as here, a municipality has enacted a prior written notice
statute, it may not be subjected to liability for injuries
caused by an improperly maintained street or sidewalk unless
it has received written notice of the defect, or an exception
to the written notice requirement applies'"
(Larenas v Incorporated Vil. of Garden City, 143
A.D.3d 777, 777-78, quoting Miller v Village of E.
Hampton, 98 A.D.3d 1007, 1008; see Amabile v City of
Buffalo, 93 N.Y.2d 471, 474). As relevant here, an
exception to the prior written notice laws exists where the
municipality creates the defective condition through an
affirmative act of negligence (see Lopez-Calderone v
Lang-Viscogliosi, 127 A.D.3d 1143, 1145; Miller v
Village of E. Hampton, 98 A.D.3d at 1008).
"'The prima facie showing that [a municipality is]
obligated to make on its motion for summary judgment [is]
governed by the allegations of liability made by the
plaintiff[ ] in the pleadings and bill of
particulars'" (Larenas v Incorporated Vil. of
Garden City, 143 A.D.3d at 778, quoting Lima v
Village of Garden City, 131 A.D.3d 947, 948). Here, the
plaintiffs alleged that the County affirmatively caused or
contributed to the dangerous condition through its snow
plowing operations on Old Country Road that caused snow to be
deposited onto the sidewalk. Therefore, to demonstrate its
entitlement to judgment as a matter of law, the County was
required to establish, prima facie, that it did not receive
prior written notice of the dangerous condition and that it
did not create the alleged dangerous condition (see
Larenas v Incorporated Vil. of Garden City, 143 A.D.3d
at 778; Lima v Village of Garden City, 131 A.D.3d at
948). Although the County demonstrated, prima facie, that it
did not receive prior written notice, the County's
submissions failed to establish, prima facie, that its snow
removal operations did not create or exacerbate a dangerous
condition (see Larenas v Incorporated Vil. of Garden
City, 143 A.D.3d at 778; Keese v Imperial Gardens
Assoc., LLC, 36 A.D.3d 666, 667-668; Prenderville v
International Serv. Sys., Inc., 10 A.D.3d 334, 338).
County also failed to make a prima facie showing that its
alleged negligence was not a proximate cause of the accident.
"Where the acts of a third person intervene between the
defendant's conduct and the plaintiffs injury, the causal
connection is not automatically severed" (Derdiarian
v Felix Contr. Corp., 51 N.Y.2d 308, 315). "An
intervening act constitutes a superseding cause sufficient to
relieve a defendant of liability if it is 'extraordinary
under the circumstances, not foreseeable in the normal course
of events, or independent of or far removed from the
defendant's conduct'" (Fahey v A.O. Smith
Corp., 77 A.D.3d 612, 616, quoting Derdiarian v
Felix Contr. Corp., 51 N.Y.2d at 315). Where, however,
"the intervening act is a natural and foreseeable
consequence of a circumstance created by the defendant, the
causal nexus is not severed and liability will subsist"
(Niewojt v Nikko Const. Corp., 139 A.D.3d 1024,
1026; see Kush v City of Buffalo, 59 N.Y.2d 26, 33).
The issue of whether an act is foreseeable is generally for
the trier of fact (see Lynch v Bay Ridge Obstetrical
& Gynecological Assoc., P.C., 72N.Y.2d 632, 636;
Derdiarian v Felix Contr. Corp., 51 N.Y.2d at 315).
Here, the County's alleged negligent snow plowing
operations contributed to the obstruction of the sidewalk,
which prevented Piazza from continuing to walk on the
sidewalk, and caused her to walk in the roadway where she was
hit by a vehicle driven by Volpe. Under these circumstances,
there is a triable issue of fact as to whether Volpe's
act in hitting Piazza with her vehicle was a natural and
foreseeable consequence of the County's alleged
the County failed to satisfy its prima facie burden, its
motion was properly denied regardless of the adequacy of the
opposition papers (see Winegrad ...