- February 15, 2018
BRACKEN MARGOLIN BESUNDER LLP, ISLANDIA, NY (PATRICIA M.
MEISENHEIMER OF COUNSEL), FOR APPELLANTS.
SPELLMAN BARRETT, LLP, SMITHTOWN, NY (JOHN M. DENBY OF
COUNSEL), FOR RESPONDENT.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN,
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Thomas F.
Whelan, J.), dated December 6, 2015. The order granted the
defendant's motion for summary judgment dismissing the
complaint and denied the plaintiffs' cross motion for
leave to amend the notice of claim.
that the order is affirmed, with costs.
January 20, 2009, the plaintiff Sigrid Burton allegedly was
injured when she slipped and fell on a patch of ice as she
attempted to walk around a carousel located within Mitchell
Park in the defendant Village of Greenport. By notice of
claim dated February 19, 2009, Burton asserted a claim
against the Village to recover damages for physical injuries
she sustained when she "was caused to trip and fall on
ice on the walkway adjacent to the Carousel which constituted
a hazardous condition and a trap and snare.''
by summons and complaint filed on July 16, 2009, Burton, and
her husband suing derivatively, commenced this action to
recover damages from the Village. The plaintiffs alleged,
inter alia, that the Village created the icy condition upon
which Burton fell. In their bill of particulars dated October
13, 2009, the plaintiffs alleged, among other things, that
the Village "created a dangerous condition by
undertaking to remove snow and ice and failing to . . .
remove the ice or apply any sand or salt to remove existing
the completion of discovery, the Village moved for summary
judgment dismissing the complaint. In support of its motion,
the Village submitted the affidavit of the Village Clerk, who
stated that the Village did not receive prior written notice
of the alleged icy condition. While the Village made no
attempt to refute the allegations that the Village created
the alleged icy condition (see generally Braver v Village
of Cedarhurst, 94 A.D.3d 933, 934), the Village
contended that such allegations went beyond the scope of the
allegations made in the notice of claim (see Steins v
Incorporated Vil. of Garden City, 127 A.D.3d 957).
plaintiffs opposed the Village's motion and cross-moved
for leave to amend the notice of claim to include details as
to how the Village created the icy condition. In their
proposed amended notice of claim, the plaintiffs alleged,
inter alia, that the Village was negligent in
''creating a hazardous condition on the sidewalk
adjacent to the east side of the Carousel in Mitchell Park by
improper plowing of snow by piling snow on the sides of the
sidewalk which piles of snow melted as temperatures rose
above freezing resulting in puddles of water which refroze as
the temperature dropped below freezing producing ice
accumulation which was not properly treated with salt, sand
or ice melt." The Supreme Court granted the
Village's motion and denied the plaintiffs' cross
motion. The plaintiffs appeal.
Village established its prima facie entitlement to judgment
as a matter of law by demonstrating that it had no prior
written notice of the alleged icy condition complained of by
the plaintiffs, as required by Village Law § 6-628 (see
Oliveri v Village of Greenport, 93 A.D.3d 773;
Shannon v Village of Rockville Ctr., 39 A.D.3d 528,
529). The Village also established that the notice of claim
failed to allege that the icy condition on which Burton
slipped and fell was created by the Village's snow
removal operations, or existed by virtue of the Village's
negligence (see Steins v Incorporated Vil. of Garden
City, 127 A.D.3d at 959). In opposition, the plaintiff
failed to raise a triable issue of fact (see Alvarez v
Prospect Hosp., 68 N.Y.2d 320).
to the plaintiffs' contention, their proposed amendment
to the notice of claim was not to correct a technical
mistake, defect, or omission within the meaning of General
Municipal Law § 50-(e)(6) (see Ahmed v New York City
Hous. Auth., 119 A.D.3d 494, 495), but rather to assert
a new theory of affirmative negligence several years after
the expiration of the applicable limitations period (see
Aleksandrova v City of New York, 151 A.D.3d 427,
the Supreme Court properly granted the Village's motion
for summary judgment dismissing the complaint and denied the