DiPaolo v. Village of Tuckahoe

Appellate Division of the Supreme Court of New York

DiPaolo v. Village of Tuckahoe

253 A.D.2d 841, 678 N.Y.S.2d 368, 1998 N.Y. App. Div. LEXIS 9878

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 28, 1998

StatusPublished

Cited by4 cases

This text of 253 A.D.2d 841 (DiPaolo v. Village of Tuckahoe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DiPaolo v. Village of Tuckahoe, 253 A.D.2d 841, 678 N.Y.S.2d 368, 1998 N.Y. App. Div. LEXIS 9878 (N.Y. Ct. App. 1998).

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In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Scarpino, J.), entered July 7, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff Irma DiPaolo was allegedly injured when she slipped and fell on a patch of snow and/or ice in a municipal parking lot owned and maintained by the defendant, Village of Tuckahoe. It is well established that where, as here, there has been no prior written notice of a claimed defect (see, Village Law § 6-628), a village may not be held liable for the mere passive failure to remove all snow and ice from its municipal parking lot (see, Zwielich v Incorporated Vil. of Freeport, 208 AD2d 920).

The plaintiffs assert (and the dissent agrees) that this case falls within the exception to the prior written notice requirement provided in Ferris v County of Suffolk (174 AD2d 70). We disagree. In Ferris, this Court acknowledged “a narrow exception to the prior written notice requirement” in circumstances where a municipality, because it either had inspected or performed work at the accident site, should have had knowledge of a defective or dangerous condition (Ferris v County of Suffolk, supra, at 71). Ferris, however, did not involve a snowy or icy condition and, indeed, this Court has subsequently held that actual or constructive notice cannot substitute for written notice when the condition involves snow or ice (see, Linder v Town of Babylon, 187 AD2d 568). We have considered the plaintiffs’ remaining contention and find it to be without merit. Accordingly, the Supreme Court did not err in granting the defendant’s motion for summary judgment. Rosenblatt, J. P., Sullivan, Joy and Altman, JJ., concur.

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In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Scarpino, J.), entered July 7, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff Irma DiPaolo was allegedly injured when she slipped and fell on a patch of snow and/or ice in a municipal parking lot owned and maintained by the defendant, Village of Tuckahoe. It is well established that where, as here, there has been no prior written notice of a claimed defect (see, Village Law § 6-628), a village may not be held liable for the mere passive failure to remove all snow and ice from its municipal parking lot (see, Zwielich v Incorporated Vil. of Freeport, 208 AD2d 920).

The plaintiffs assert (and the dissent agrees) that this case falls within the exception to the prior written notice requirement provided in Ferris v County of Suffolk (174 AD2d 70). We disagree. In Ferris, this Court acknowledged “a narrow exception to the prior written notice requirement” in circumstances where a municipality, because it either had inspected or performed work at the accident site, should have had knowledge of a defective or dangerous condition (Ferris v County of Suffolk, supra, at 71). Ferris, however, did not involve a snowy or icy condition and, indeed, this Court has subsequently held that actual or constructive notice cannot substitute for written notice when the condition involves snow or ice (see, Linder v Town of Babylon, 187 AD2d 568). We have considered the plaintiffs’ remaining contention and find it to be without merit. Accordingly, the Supreme Court did not err in granting the defendant’s motion for summary judgment. Rosenblatt, J. P., Sullivan, Joy and Altman, JJ., concur.

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Bluebook (online)

253 A.D.2d 841, 678 N.Y.S.2d 368, 1998 N.Y. App. Div. LEXIS 9878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dipaolo-v-village-of-tuckahoe-nyappdiv-1998.

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