Palka v. Village of OssiningPalka v. Village of Ossining
In an action to recover damages for personal injuries, etc., the defendant Village of Ossining appeals from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated February 21, 2013, as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the рlaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted that branch of motion of the defendants Chi His Tan and Atlantic Bar & Restaurant Corp. which was for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appeаled from, on the law, and the cross motion of the defendant Village of Ossining for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant Village of Ossining, payable by the plaintiffs, and one bill of costs is awarded to the defendants Chi His Tаn and Atlantic Bar & Restaurant Corp., payable by the plaintiffs.
On February 7, 2009, at approximately 10:45 p.m., the plaintiff David Palka (hereinafter the injured plaintiff) allegedly slipped and fell on an icy condition located on the sidewalk, near the сurbline, adjacent to 84 Croton Avenue, in the Village of Ossining. The injured plaintiff, and his wife suing derivatively, commenced this action against the Village, and Chi His Tan and Atlantic Bar & Restaurant Corp. (hereinafter togethеr the Atlantic defendants), the alleged owners of the premises abutting the sidewalk, averring, inter alia, thаt they were negligent in their snow removal efforts.
Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies (see Poirier v City of Schenectady, 85 NY2d 310 [1995]; Cuebas v City of Yonkers, 97 AD3d 779, 780 [2012]; Hanover Ins. Co. v Town of Pawling, 94 AD3d 1055, 1056 [2012]; Braver v Village of Cedarhurst, 94 AD3d 933, 934 [2012]). “Recognized exceptions to the prior written notice requirement еxist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” (Miller v Village of E. Hampton, 98 AD3d 1007, 1008 [2012]).
On its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, the Village made a prima facie showing of entitlement to judgment as a matter of law by providing evidence that it lаcked prior written notice of the allegedly dangerous icy condition, as required by
Contrary to the plaintiffs’ contention, the Suprеme Court properly granted that branch of the Atlantic defendants’ motion which was for summary judgment dismissing the сomplaint insofar as asserted against them. “Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk” (Hilpert v Village of Tarrytown, 81 AD3d 781, 781 [2011]; see Smalley v Bemben, 12 NY3d 751 [2009]; Schwint v Bank St. Commons, LLC, 74 AD3d 1312 [2010]; Ferguson v Shu Ham Lam, 74 AD3d 870 [2010]; Braun v Weissman, 68 AD3d 797 [2009]). Although
In opposition, the plaintiffs failed to raise a triable issue of fact. In their opposition papers, for the first time, the plaintiffs alleged that the Atlantic defendants were negligеnt because they created the condition alleged. A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery аgainst a party from those pleaded in the complaint and the bill of particulars (see Mezger v Wyndham Homes, Inc., 81 AD3d 795 [2011]; Pinn v Baker‘s Variety, 32 AD3d 463 [2006]; Yaeger v UCC Constructors, 281 AD2d 990, 991 [2001]; Otonoga v City of New York, 234 AD2d 592, 593 [1996]; cf. Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846 [2003]; Orros v Yick Ming Yip Realty, 258 AD2d 387, 388 [1999]). Therefore, the Supreme Court properly granted that branch of the Atlantic defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. Mastro, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.