Wohlars v. Town of Islip

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Wohlars v. Town of Islip, 898 N.Y.S.2d 59, 71 A.D.3d 1007 (N.Y. App. Div. 2010)
• Decision Date: 23 March 2010
• Parties: William J. WOHLARS, et al., respondents, v. TOWN OF ISLIP, appellant.

898 N.Y.S.2d 59

71 A.D.3d 1007

William J. WOHLARS, et al., respondents,

v.TOWN OF ISLIP, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 23, 2010.

Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace M. Bartone of counsel), for appellant.

John L. Juliano, P.C., East Northport, N.Y., for respondents.

PETER B. SKELOS, J.P., ANITA R. FLORIO, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated June 15, 2009, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

On December 7, 2005, at approximately 7:00 A.M., the plaintiff William J. Wohlars (hereinafter the plaintiff) allegedly slipped and fell on ice or snow on a sidewalk located in the southeast parking lot (hereinafter the subject parking lot) of the Ronkonkoma Station of the Long Island Rail Road. The plaintiff and his wife, suing derivatively, commenced this action against the defendant, Town of Islip, inter alia, to recover damages for personal injuries he allegedly sustained as a result of the fall.

According to the plaintiff's testimony given at the hearing pursuant to General Municipal Law § 50-h and at his subsequent deposition, it had snowed the day before the incident. However, the plaintiff did not recall how long it snowed, how much snow fell, or when it stopped snowing. There also was no evidence of any prior snowfall in the weeks immediately preceding the day of the incident.

The plaintiff further testified that, as he traversed the subject parking lot after exiting his car, he approached a two-foot wide pathway, on a sidewalk adjacent to a roadway separating that sidewalk from another sidewalk immediately adjacent to the train platform. The plaintiff stated that he observed some snow and ice to the left and right of the pathway. In his affidavit submitted in opposition to the defendant's motion for summary judgment dismissing the complaint, the plaintiff averred that "the center of the walkway was covered with a sheet of ice approximately 2-3 feet in width" and was not treated with any salt or ice melting agents. The plaintiff also averred in his affidavit that he walked to the side of the walkway to avoid the ice. As recounted by the plaintiff in his affidavit, he stepped to the right of the path, slipped on ice concealed by what he described as "light snow," and fell to the left, twisting his ankle. The plaintiff did not recall the depth of the snow.

The Town established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of Peter Kletchka, formerly a public works project supervisor and, at the time he was deposed, a Deputy Commissioner of the Town's Department of Public Works, stating that his search of the Town's records revealed no prior written notice of the alleged icy condition at the subject parking lot ( see Town Law § 65-a[2]; Code of Town of Islip § 47A-3; Shannon v. Village of Rockville Ctr., 39 A.D.3d 528, 834 N.Y.S.2d 537; Gianna v. Town of Islip, 230 A.D.2d 824, 825, 646 N.Y.S.2d 707; Linder v. Babylon, 187 A.D.2d 568, 590 N.Y.S.2d 134; Goldberg v. Town of Hempstead, 156 A.D.2d 639, 640, 549 N.Y.S.2d 138; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Once the Town satisfied its burden of showing a lack of prior written notice, the plaintiffs, in order to defeat the Town's motion, were required to come forward with admissible evidence to raise a triable issue of fact as to whether written notice was given, whether the defendant created or exacerbated the alleged icy condition through its affirmative negligent acts, or whether a special use conferred a specialbenefit on the Town ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Shannon v. Village of Rockville Ctr., 39 A.D.3d at 529, 834 N.Y.S.2d 537; Gianna v. Town of Islip, 230 A.D.2d at 825, 646 N.Y.S.2d 707; see also Rosenthal v. Village of Quogue, 205 A.D.2d 745, 745-746, 613 N.Y.S.2d 684; Albanese v. Town of Hempstead, 176 A.D.2d 697, 574 N.Y.S.2d 788; cf. Zwielich v. Incorporated Vil. of Freeport, 208 A.D.2d 920, 921, 617 N.Y.S.2d 871).

Contrary to the plaintiffs' contentions, they failed to demonstrate that the...