Opinion
2003-04184.
Decided April 26, 2004.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (LaCava, J.), entered April 10, 2003, which granted the motion of the defendant Incorporated Town of Greenburgh for summary judgment dismissing the complaint insofar as asserted against it.
Worby Groner Edelman LLP, White Plains, N.Y. (John Raymond Mechmann, Jr., and William H. Groner of counsel), for appellant.
Thomas M. Bona, P.C., White Plains, N.Y. (Robert H. Steindorf of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant Incorporated Town of Greenburgh to recover damages for injuries he sustained in an automobile accident allegedly caused by snow and ice that had frozen on a road owned and maintained by the Town. The Town moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not have prior written notice of the allegedly dangerous condition as required by Town Law § 65-a. The plaintiff opposed the motion on the ground that the Town created the allegedly dangerous condition by an affirmative act of negligence.
The Supreme Court correctly granted the Town's motion for summary judgment. The Town established, prima facie, that it did not receive prior written notice of the alleged condition, a prerequisite for maintaining an action against it arising from a snow or ice condition on its roadways ( see Town Law § 65-a; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474; Brooks v. Village of Babylon, 251 A.D.2d 526; Sloan v. Village of Hempstead, 223 A.D.2d 632; see also CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). While notice would not have been required if the Town created the condition though an affirmative act of negligence ( see Amabile v. City of Buffalo, supra at 474; Mayer v. Town of Brookhaven, 266 A.D.2d 360, 361), the evidence submitted by the plaintiff in opposition to the establishment of a prima facie case for summary judgment failed to raise a triable issue of fact as to whether the ice on which the plaintiff's vehicle allegedly slid and spun was formed when piles of snow created by the Town during a prior storm melted and refroze ( cf. Grillo v. Brooklyn Hosp., 280 A.D.2d 452; Grizzaffi v. Paparodero Holding Corp., 261 A.D.2d 437; Roca v. Gerardi, 243 A.D.2d 616).
RITTER, J.P., S. MILLER, ADAMS and COZIER, JJ., concur.