Hunter v Town of Pleasant Val.
Annotate this CaseDecided on November 28, 2012
Supreme Court, Dutchess County
Francis Hunter, Plaintiff,
against
Town of Pleasant Valley, Defendant.
2277/2011
WILLIAM W. FRAME, ESQ.
CORBALLY, GARTLAND & RAPPLEYEA, LLP
Attorneys for Plaintiff
35 Market Street
Poughkeepsie, New York 12601
GEORGE P. GAMBESKI, ESQ.
GAMBESKI & FRUM, ESQS.
Attorneys for Defendant
565 Taxter Road, Suite 220
Elmsford, New York 10523
James D. Pagones, J.
Defendant moves for summary judgment dismissing the plaintiff's complaint in its entirety. The plaintiff opposes the instant application. For the foregoing reasons, it is ordered that the defendant's motion is granted and plaintiff's complaint is dismissed in its entirety.
This personal injury action arises out of plaintiff Francis Hunter's alleged trip and fall on Traver Road in Pleasant Valley. The accident occurred at approximately 7:45-8:00 a.m. on January 28, 2010 during a snowstorm as plaintiff was walking to a school bus that became stranded near his house. While walking on the road towards the bus, the plaintiff slipped and suffered a broken left femur and broken left hip. The plaintiff contends that the Town of Pleasant Valley was negligent by not having plowed or salted the roads at the time prior to his accident. The defendant asserts that they are not liable as it is well established that a municipality is not liable in negligence for slip and fall injuries sustained during a storm. Furthermore, the defendant [*2]contends non-liability because the plaintiff did not give the defendant written notice of the hazardous conditions on the municipal road.
It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)
A municipality will not be held liable in negligence for injuries sustained by a pedestrian who slips and falls on an icy and/or snow covered roadway during a storm; and "responsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while the storm is still in progress." (DeStefano v. City of New York, 41 AD3d 528, 838 N.Y.S.2d 599 [2007]);(Chapman v. City of New York, 268 AD2d 498, 702 N.Y.S.2d 355 [2000]). Furthermore, in order for a plaintiff to succeed on a claim for personal injuries as a result of a fall on a municipal roadway, there must be prior written notice of the condition in question. Once a municipality has "enacted a prior written notice statute [it] is not subject to liability for personal injury resulting from an improperly maintained road unless it received prior notice of the condition." (Miller v. City of Albany, 278 AD2d 647, 717 N.Y.S.2d 697 [3rd Dept. 2000]).
On this application, the defendant has established, on a prima facie basis, entitlement to judgment dismissing the plaintiff's complaint. The defendant submitted meteorological documentation that the accident occurred during a snow storm. Specifically, the evidence submitted by the defendant establishes that precipitation in the form of snow occurred on January 28, 2010 from 6:15-11:45 a.m. Therefore, there was no lapse in reasonable time for the defendant to take protective measures.
Additionally, the defendant enacted a prior written notice statute, which specifically states that no civil action will be maintained against the Town of Pleasant Valley:
For damages or injuries to persons or property sustained solely in consequences of the existence of snow or ice upon any highway, bridge, culvert, or any other property owned by the Town of Pleasant Valley. . . unless written notice thereof, specifying [*3]the particular place, was actually given to the Town Clerk of the Town of Pleasant Valley or the Town Superintendent to the Town of Pleasant Valley and there was a failure or neglect to cause such snow or ice to be removed or to make the place otherwise reasonable[ly] safe within a reasonable time after receipt of such notice. (Section 69-1)
Defendant provided affidavits of Margaret Hart, Town Clerk, and Kurt Gardner, Highway Superintendent, for the Town of Pleasant Valley verifying that a search of the logs and records maintained by defendant revealed no prior reports of slippery conditions in the vicinity of plaintiff's accident.
In opposition, the plaintiff argues that the defendant's failure to remove the snow created an affirmative act of negligence, an exception to the statutory rule requiring prior written notice. However, it is well settled that the failure to remove snow and ice while the storm is in progress is not an affirmative act of negligence. (Ali v. Village of Pleasantville, 95 AD3d 796, 943 N.Y.S.2d 528); (Lichtman v. Village of Kiryas Joel, 90 AD3d 1001, 935 N.Y.S.2d 331 [2011]).
Based upon the parties' submissions, the court determines that no question of fact exists as to whether the defendant was negligent in failing to remove snow from the vicinity of plaintiff's accident. The defendant had no prior written notice of the alleged conditions, and since documentation proves that the storm was in progress at the time of plaintiff's fall, the defendant cannot be held liable for plaintiff's injuries.
Therefore, it is ordered that the defendant's motion is granted and the plaintiff's complaint is dismissed.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
1.Notice of Motion.............................1-2
Affirmation-Gambeski....................1-7
Exhibits................................A-I
2.Affidavit in Opposition-Francis Hunter.......1-3
The foregoing constitutes the decision and order of the
Court.
Dated:Poughkeepsie, New York
November 28, 2012
ENTER
[*4]
HON. JAMES D. PAGONES, A.J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
