This motion by defendant Village of Great Neck Plaza (the "Village") for an order pursuant to CPLR 3212 and 9804 granting summary judgment in its favor dismissing the plaintiff's complaint and all cross-claims as against movant and pursuant to CPLR 3103 issuing a protective order denying plaintiff from taking any further depositions of witnesses on behalf of the Village is granted. The motion by defendant Great Neck Park District for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing the complaint as against it is granted.

This is an action to recover money damages for personal injuries allegedly sustained by [*2]plaintiff on February 2, 2009. Plaintiff alleges that she slipped and fell on a patch of ice in the public sidewalk located on the north side of Grace Avenue between Barstow Road and Park Place adjacent to the property known as Jonathan L. Ielpi Park, approximately between 110-120 feet west of the corner of Grace Avenue and Barstow Avenue in Great Neck, County of Nassau, State of New York.

On February 5, 2010, the examinations before trial of the following people were held: plaintiff, David Reed on behalf of co-defendant Great Neck Park District and Michael Sweeney on behalf of the Village of Great Neck Plaza. On February 22, 2010, plaintiff's counsel served upon counsel for defendant three "Notices of Deposition" seeking to depose the following additional witnesses on behalf of the Village: "Ron Ryan," "Chris Bachman," and "Joseph Diaz."

In opposition to the branch of the motion which seeks a protective order, plaintiff asserts that the motion is premature as the Village failed to comply with prior discovery demands and the preliminary conference order by failing to provide accident scene photographs and an incident report prior to the deposition. Specifically, plaintiff argues that "[i]t wasn't until the end of Mr. Sweeney's deposition that the photographs and incident report were produced." Hence, plaintiff asserts that further discovery is required and issues of fact exist related to the Village's liability for plaintiff's accident.

In response, the Village asserts that "plaintiff's demand to depose three additional witnesses on behalf of the Village was complied with in good faith by the Village and as such, it is clear that the Village had no role in the maintenance of the sidewalks surrounding Ielpi Park, and as a result, no responsibility for the plaintiff's injuries."

CPLR 3101(a) provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof (see Allen v Cromwell-Collier Pub. Co., 21 NY2d 403, 406;see also Spectrum Systems International Corporation v Chemical Bank, 78 NY2d 371; Quevedo v Eichner, 29 AD3d 554). The Court of Appeals in Allen, supra, held that "[t]he words material and necessary' are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Id; see also Andon v 302-304 Mott Street Assocs., 94 NY2d 740, 746; Spectrum Systems International Corporation v Chemical Bank, supra; Parise v Good Samaritan Hosp., 36 AD3d 678). This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise (Spectrum Systems International Corporation v Chemical Bank, supra citing 3A Weinstein-Korn-Miller, NY Civ. Prac. § § 3101.01-3101.03).

CPLR 3103(a) provides that "a court may make a protective order conditioning or regulating the use of any disclosure device . . . to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts." The CPLR also establishes three categories of protected materials: 1) privileged matter, which is immune from discovery pursuant to CPLR 3101(b); 2) attorney's work product, which is also immune from discovery pursuant to CPLR 3101(c); and 3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means, pursuant to CPLR § 3101(d)(2) (Spectrum Systems International Corporation v Chemical Bank, supra at 376-377). The burden of establishing any right to protection is on the party asserting it. The protection claimed must be narrowly construed and its application must be [*3]consistent with the purposes underlying the immunity (Id. at 377).

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Evangelista v Kambinis, 74 AD3d 1278; matter of Fasciglione, 73 AD3d 729; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).

However, "the mere hope that further discovery would yield evidence of a triable issue of fact is not a basis for denying summary judgment" (JP Morgan Chase Bank, N.A. v Agnello, 62 AD3d 662 quoting Lee v T.F. DeMilo Corp., 29 AD3d 867, 868; see also Chemical Bank v PIC Motors Corp, 58 NY2d 1023, 1026; Lambert v Bracco, 18 AD3d 619, 620). The conclusory assertions contained in plaintiff's counsel's affirmation that further discovery is needed are insufficient to defeat this motion for summary judgment.

The Village moves for summary judgment on the grounds that it did not receive prior written notice of the alleged defect as required by Village Law § 6-628 and CPLR 9804. In support thereof, the Village submits the affidavit of Michael Sweeney, Commissioner of Public Services for the Village.

The Village further argues that it cannot be found liable for the accident, as pursuant to Village of Great Neck Plaza Code Chapter 185, Article I, Section 185-1 entitled "Responsibility for Maintenance and Repair," it is the duty of the abutting landowner to maintain the sidewalk in front of their premises. A review of the Village's records indicate that the co-defendant Great Neck Park District is the abutting landowner to the sidewalk on the north side of Grace Avenue between Barstow Road and Park Place pursuant to Village of Great Neck Plaza. Additionally, pursuant to Village of Great Neck Plaza Code chapter 185, Article 1, Section 185-1-1, entitled "Removal of Snow and Ice," it is the duty of the abutting landowner to clean and maintain a four (4) foot wide path clear of ice and snow on the sidewalks abutting their property. At bar, co-defendant Great Neck Park District would have been responsible for clearing the snow and ice on the date in question and not the Village of Great Neck Plaza.

Initially, we note that plaintiff does not dispute that the Village established that it did not receive prior written notice of the defect as provided by CPLR 9804 and Village Law § 6-628. Nor has the Great Neck Park District opposed the Village's motion for summary judgment.

Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained [parking lot] unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (Griesbeck v County of Suffolk, 44 AD3d 618, 619). The prior written notice requirement will be obviated only if the plaintiff establishes that a special use resulted in a special benefit to the locality or that the municipality affirmatively created the defect by performing work that immediately resulted in the existence of a dangerous condition (see Yarborough v City of New York, 10 NY3d 726, 728; Oboler v City of New York, 8 NY3d 888; Amabile v City of Buffalo, 93 NY2d 471, 474). The affirmative negligence exception is limited to work by the [defendant] that immediately results in the existence of a dangerous condition (Oboler v City of New York, supra at 889) (internal quotation marks omitted); see Yarborough v City of New York, supra at 728; Marshall v City of New York, 52 AD3d 586; Bielecki v City of New York, 14 AD3d 301; Schleif v City of New York, 60 AD3d 926, quoting Diaz v City of New York, 56 AD3d 599, 6000-601).

Accordingly, an injured plaintiff must establish that the municipality received prior written [*4]notice of an alleged defective or dangerous condition in order to impose liability on said municipality (Jacobs v Village of Rockville Centre, 41 AD3d 539; Kravolz v County of Suffolk, 41 AD3d 1042). Plaintiff has not alleged that the Village received prior written notice of the allegedly defective condition as required by Village Law § 6-628. Nor has the plaintiff demonstrated that the village affirmatively created the defect or that a special use resulted in a special benefit to the locality (see Yarborough v City of New York, supra at 728; Oboler v City of New York, supra at 890).

Hence, the Village has established its entitlement to summary judgment dismissing the complaint and plaintiff has failed to raise an issue of fact sufficient to defeat this motion.

In support of its motion, defendant Great Neck Park District admits that they are the owners of Grace Avenue/Ielpi Park and as such, are adjacent property owners to the portion of the public sidewalk where plaintiff alleges she fell on a patch of ice; and that the Village Code for the Village of Great Neck Plaza places responsibility for the removal of snow and ice on sidewalks on the adjacent property owner. However, the Code does not impose tort liability on adjoining owners for claims for damages or injuries that arise out of the presence of snow and/or ice on a sidewalk abutting the property.

An owner of property abutting a public sidewalk is under no duty to pedestrians to remove snow and ice that naturally accumulates upon the sidewalk in front of the premises unless a statute or ordinance specifically imposes tort liability for failing to do so (see Rao v Hatanian, 2 AD3d 616). The Village Code for the Village of Great Neck Plaza does not contain such a statute or ordinance.

Village of Great Neck Plaza Code § 185-1 states:

"Every owner or occupant of any house or other building, and every owner or person entitled to possession of any vacant lot, and any person having charge of any church or any public building in the Village of Great Neck Plaza shall, during the winter season or during the time snow shall continue on the ground, keep the sidewalk in front of such lot or house free from obstruction by snow or ice and icy conditions and shall at all times keep such sidewalk in good repair and maintain the same clean, free from filth, dirt, weeds or other obstructions or encumbrances."

When no statute or ordinance exists which imposes tort liability on abutting landowners, the abutting property owner may only be held liable for injuries allegedly caused by a snow or ice condition if the plaintiff can establish that: (1) the abutting property owner made the sidewalk more hazardous by causing, creating or exacerbating the icy condition (Krichevskaya v City of New York, 30 AD3d 471, or (2) the abutting landowner caused the icy condition because of a "special use" of the sidewalk (Diaz v Vieni, 303 AD2d 713).

Plaintiff has not alleged that the icy condition on which the plaintiff allegedly fell was the result of or caused by a special use of the sidewalk, nor is there any evidence to suggest same (Diaz v Vieni, supra at 714). Therefore, in order for the Great Neck Park District to be liable to the plaintiff for her alleged injuries, the plaintiff must prove that the Great Neck Park District "caused, created or exacerbated" the icy condition on the public sidewalk on the north side of Grace Avenue (Krichevskaya v City of New York, supra at 472).

It is not enough for plaintiff to demonstrate that there was an icy condition on the subject sidewalk, but rather, plaintiff must prove that the actions taken by the Great Neck Park District to remove any ice from the sidewalk rendered the sidewalk more hazardous than if they had done nothing (Klutz v City of New York, 9 AD3d 392). Plaintiff must demonstrate that the actions taken [*5]by the Great Neck Park District to remove the ice made the "naturally-occurring conditions more hazardous" (Bisontt v Rockaway One Company, LLC, 47 AD3d 862).

In opposition to the motions, plaintiff submits the following exhibits:

relevant pages of plaintiff's General Municipal Law § 50-h hearing and deposition;

relevant pages of transcript of deposition of David Reed, the Park District's attendant at Ielpi Park;

relevant pages of transcript of deposition of Joseph Diaz, a Housing Inspector and Director of Code Enforcement for the Village;

relevant pages of transcript of deposition of Chris Bachman, the Village Code Enforcement officer;

relevant pages of transcript of deposition of Eugene Bradley, Supervisor of Parks;

relevant pages of transcript of deposition of Michael Sweeney, the Village Commissioner of Public Services;

copy of Intermunicipal Agreement dated March 25, 2003;

photograph of accident scene taken on February 2, 2009;

copies of Nassau County Police Department Aided Report;

Great Neck Vigilant Fire Company ambulance call report; and

affidavit of Thomas Downs, V, a meteorologist sworn to on July 21, 2010.

Defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged defect or have actual or constructive notice of it (see Christal v Ramapo Cirque Homeowners Ass'n., 51 AD3d 846; Makaron v Luna Park Hous. Corp., 25 AD3d 770; Zabbia v Westwood, LLC, supra; Murphy v 136 N. Blvd. Assocs., 304 AD2d 540; Carricato v Jefferson Valley Mall Ltd. Partnership, 299 AD2d 444). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

As noted above, plaintiff relies, inter alia, upon the testimony of Mr. Reed and Mr. Sweeney. Mr. Reed testified that his job duties include maintenance of the park, including snow removal around the parks. Mr. Reed further testified that on the morning of February 5, 2010, he arrived at work at 7:00 A.M. and left the Park at 8:30 A.M. When he conducted his inspection of the sidewalk on Grace Avenue, he discovered that there was ice on the sidewalks requiring him to apply salt. At his examination-before-trial, Mr. Sweeney testified that he first learned about the plaintiff's accident on February 5, 2010, at approximately 9:40 A.M., when his office was contacted by the Nassau County Police Department, Sixth

Precinct, informing The Village that there was an ice condition on the sidewalk of Grace Avenue, [*6]and that they should go out and attend to it. Plaintiff has not established when the alleged dangerous condition came into existence or that defendants caused the condition or had actual notice of it. Plaintiff's contention that the icy condition formed as a result of the defendant's negligent snow removal efforts is speculative (Greenfield v Marine Park Funeral Home, Inc., 62 AD3d 833; see Robinson v Trade Ling America, 39 AD3d 616). Additionally, a general awareness that a hazardous condition may be present is insufficient to establish notice (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969).

In view of the foregoing, the motion by the Village and the cross-motion by Great Neck Park District for summary judgment are granted and the complaint is hereby dismissed.

This constitutes the order and judgment of this Court.

Dated: October 7, 2010

________________________

UTE WOLFF LALLY, J.S.C.