Zwielich v. Incorporated Village of Freeport

• Court: New York Supreme Court — Appellate Division
• Citation: Zwielich v. Incorporated Village of Freeport, 617 N.Y.S.2d 871, 208 A.D.2d 920 (N.Y. App. Div. 1994)
• Decision Date: 31 October 1994
• Parties: Carol ZWIELICH, Respondent, v. INCORPORATED VILLAGE OF FREEPORT, Appellant.

Page 871

617 N.Y.S.2d 871

208 A.D.2d 920

Carol ZWIELICH, Respondent, v. INCORPORATED VILLAGE OF FREEPORT, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 31, 1994.

Montfort, Healy, McGuire & Salley, Garden City (E. Richard Rimmels, Jr., of counsel), for appellant.

Jacoby & Meyers, Melville (Lee Heit, of counsel), for respondent.

Before MANGANO, P.J., and THOMPSON, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Hart, J.), dated April 7, 1993, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Contrary to the conclusion of the Supreme Court, we find that the plaintiff failed to adduce any evidence of affirmative negligence on the part of the defendant in connection with the creation or exacerbation of the alleged dangerous ice condition (see, Albanese v. Town of Hempstead, 176 A.D.2d 697, 574 N.Y.S.2d 788; cf., Thompson v. County of Putnam, 163 A.D.2d 517, 558 N.Y.S.2d 600). Accordingly, in the conceded absence of prior written notice (see, Village Law § 6-628; Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459), the defendant Village may not be held liable for its mere passive failure to remove all snow and ice from its municipal parking lot (see, Albanese v. Town of Hempstead, supra; Spicehandler v. City...