Snow and ice cases against a municipality (Second Department)

A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it had not been notified in writing of the existence of the defect or hazard.  In the context of a motion to dismiss (in the Second Department, at least), when the municipality establishes that it has a prior written notice law, that the subject defect falls within the ambit of that law, and that the municipality lacks any prior written notice of a defect at the subject location, “the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.”  Smith v. City of New York, 210 A.D.3d 53, 69 (2d Dep’t 2022) (citing the Court of Appeals decisions in Yarborough v City of New York, 10 NY3d 726 (2008) and Groninger v Village of Mamaroneck, 17 NY3d 125 (2011)).  The court clarified that to the extent Second Department case law conflicts with the burden-shifting standard set forth in Groninger or Yarborough, it should no longer be followed.

In our case, even after the burden-shifting, we were able to offer factual evidence, including client deposition testimony, sufficient to raise a triable issue of act as to whether the municipality’s snow removal operations affirmatively created the icy condition (i.e., the defect) that we allege caused our client to slip and fall.  The Appellate Court affirmed the trial court’s denial of the municipality’s motion to dismiss.