The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 63-85; 87-99 Answering Papers 101-106 Reply 107, 109 Decision/Order Plaintiff commenced this action to recover for personal injuries that he sustained when he slipped and fell on ice/mound of ice in a Long Island Railroad (LIRR)/Metropolitan Transit Authority (MTA) parking lot maintained by the Town of Babylon (TOB). The incident occurred on March 9, 2019. Plaintiff, an MTA collection agent, had parked his car in the subject parking lot at approximately 4:00 a.m., intending to board a train to report to work.1. Presently, the LIRR and MTA move this Court unopposed for an Order granting summary judgment dismissal of the complaint (Motion Sequence 002).2 The MTA/LIRR had requested a voluntary discontinuance from the plaintiff; however, counsel for the MTA/LIRR advises that plaintiff’s counsel did not respond to that request. It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361 [l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). The MTA/LIRR’s submissions, which include, inter alia, the pleadings, the plaintiff’s statutory hearing and deposition transcripts, and the TOB’s transcript, establish the MTA/LIRR’s prima facie entitlement to summary judgment dismissal of the plaintiff’s complaint as alleged against those entities by demonstrating that neither entity owed the plaintiff a duty of care. As to the MTA, it is settled that the MTA and the LIRR are distinct entities, that the LIRR is a subsidiary corporation of the MTA, and that they are not responsible for each other’s torts (Mayayev v. Metropolitan Transportation Authority, 74 AD3d 910 [2d Dept 2010]; Rampersaud v. Metropolitan Transportation Authority, 73 AD3d 888 [2d Dept 2010]; Noonan v. Long Island Railroad, 158 AD2d 392 [1st Dept 1990]). Furthermore, there is no evidence whatsoever that the MTA or LIRR had actual or constructive notice of the alleged icy condition prior to plaintiff’s fall, and critically, it was the TOB that bore the sole responsibility for maintaining the subject parking lot, including snow removal activities pursuant to the Parking Program Agreement (PPA) between the LIRR and the TOB. The terms of the PPA are undisputed, and those terms demonstrate that the TOB entirely displaced the LIRR’s duty to maintain the parking lot. Without opposition, the plaintiff has failed to raise any triable issue of fact warranting denial of the MTA/LIRR’s summary judgment motion. Accordingly, the complaint is dismissed as to the MTA and LIRR defendants. In its motion for summary judgment dismissal, the TOB maintains that it did not have prior written notice of snow or ice in the subject parking lot, that there is no evidence that the TOB created the hazardous condition, and that the plaintiff has not alleged that the TOB derived a special benefit from its use of the parking lot (special use) (Motion Sequence 003). It is undisputed that prior written notice to the Town Clerk of a defect is required in order to impose liability upon the TOB for injuries to persons or property resulting from “the existence of snow or ice upon any highway, bridge, or culvert…and there was a failure or neglect to cause such snow or ice to be removed…within a reasonable time after the receipt of such notice” (TOB Code §158-1). A parking lot falls within the definition of a “highway” (Groninger v. Village of Mamaroneck, 67 AD3d 733 [2d Dept 2009], aff’d 17 NY3d 125, 129 [2011]). A municipality that has enacted a prior written notice statute may not be subjected to liability for personal injuries resulting from a defect absent the required written notice, unless an exception to that requirement applies (Forbes v. City of New York, 85 AD3d 1106 [2d Dept 2011]). Actual or constructive notice of an allegedly defective condition does not satisfy the prior written notice requirement (Charles v. City of Long Beach, 136 AD3d 634 [2d Dept 2016]; Simon v. Incorporated Village of Lynbrook, 116 AD3d 692 [2d Dept 2014]). Where a municipality establishes that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of one of the two recognized exceptions to the rule, i.e., creation by an affirmative act of negligence or special use resulting in a special benefit to the municipality, and this burden-shifting standard is applicable, even where the complaint alleges that the defendants created the allegedly dangerous condition (Smith v. City of New York, 210 AD3d 53, 69 [2d Dept 2022]; Groninger, supra; Yarborough v. City of New York, 10 NY3d 726 [2008]; Wilson v. Incorporated Village of Freeport, 2023 NY Slip Op 00349 [2d Dept 2023]). The affidavit of the TOB Clerk, Geraldine Compitello establishes that the Town did not receive any prior written notice of a defective condition and/or a snow/ice condition in the subject parking lot where plaintiff fell. Accordingly, the TOB has established its prima facie entitlement to summary judgment dismissal of the complaint as alleged against it. The burden now shifts to the plaintiff to demonstrate the applicability of one of the two exceptions to the prior written notice statute. In opposition, the plaintiff does not dispute the absence of prior written notice. “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” (Miller v. Millage of East Hampton, 98 AD3d 1007, 1008 [2d Dept 2012]; see also Masotto v. Village of Lindenhurst, 100 AD3d 718 [2d Dept 2012]). Moreover, “the affirmative negligence exception to the notice requirement [is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition” (Bielecki v. City of New York, 14 AD3d 301, 301 [1st Dept 2005]; see also Yarborough v. City of New York, 10 NY3d 726 [2008]; Oboler v. City of New York, 8 NY3d 888 [2007]). Since the plaintiff herein does not allege special use, the only remaining exception that may raise a triable issue of fact is whether the TOB created the icy condition alleged to have caused the plaintiff to slip and fall. Plaintiff asserts in opposition that the TOB failed to apply salt/sand to the parking lot. “[A] municipality’s failure to remove all snow and ice from a parking lot is passive in nature and does not constitute an affirmative act of negligence excepting it from prior written notice requirements” (Masotto, supra at 719; Stallone v. Long Island Railroad, 69 AD3d 705, 706 [2d Dept 2010]; Groninger, supra 67 AD3d at 734; Frullo v. Incorporated Village of Rockville Centre, 274 AD2d 499 [2d Dept 2000]). Furthermore, an “alleged failure to apply salt or sand to the [parking lot] do[es] not constitute an affirmative act[ ] of negligence” (Ali v. Village of Pleasantville, 95 AD3d 796 [2d Dept 2012]; Lang v. County of Sullivan, 184 AD2d 981 [3d Dept 1992]; Buccellato v. County of Nassau, 158 AD2d 440, 442 [2d Dept 1990]; Camera v. Barrett, 144 AD2d 515 [2d Dept 1988]). The testimony of TOB’s employee who plowed the subject parking lot from curb to curb on March 3, 2019, Vincent Badalmenti, establishes that he plowed snow in that parking lot until the snow stopped falling and the pavement was visible. March 3, 2019 is the last time that the area was plowed, which is six days before plaintiff’s fall. Badalmenti was not asked by his area foreman to re-plow any portion of the subject parking lot. Badalmenti did not apply any salt or sand as part of his plowing activities but testified that a separate sander would through the lot. According to his testimony, although the entire lot would be sanded, “there might be cars in it; it might block the sand.” The plaintiff testified that he slipped and fell on an oblong patch of iced that he described as being approximately one foot long and several inches high, located on the white line between the space in which his vehicle was parked and the neighboring parking space. Plaintiff himself testified that he believed it had last snowed approximately one week prior to his fall. He did not see any snow piled in the parking lot itself. He further testified that he did not see any salt on the ground where he slipped. The affidavit of plaintiff’s engineer, Stanley H. Fein, P.E., is wholly unpersuasive and fails to raise a triable issue of fact. He acknowledges that “[s]pecific snow and ice removal techniques are not the subject of building codes and municipal ordinances;” therefore, there is no proof that the TOB violated any ordinance. Furthermore, although Mr. Fein cites to the American Society for Testing and Materials (ASTM) as calling for parking lots to be “treated with de-icing materials before permitting use,” this ASTM provision is not mandatory, does not impose a duty upon the TOB, and, therefore, does not serve to raise an issue of fact. Moreover, even assuming arguendo that the TOB did not salt or sand the parking lot after it was plowed, an omission does not constitute an affirmative act of negligence pursuant to settled caselaw that the plaintiff does not rebut with any applicable legal authority. Accordingly, the TOB’s motion for summary judgment is granted. Motions Sequences 002 and 003 are granted in their entirety, and the complaint is dismissed as to each of the moving defendants. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ X ] NON-FINAL ISPOSITION [ ] Dated: January 27, 2023
