Upon the following papers numbered 1 to 44 read upon this motion and cross motion for summary judgment: Notice of Motion and supporting papers, 1 - 12; Notice of Cross Motion and supporting papers, 13 - 24; Answering Affidavits and supporting papers, 35 - 38; 39 - 42; Replying [*2]Affidavits and supporting papers, 43 - 44; Other, Bridgeport's Memorandum of Law; Bridgeport's Reply Memorandum of Law; it is

ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further

ORDERED that the motion by defendant The Bridgeport & Port Jefferson Steamboat Company for an order pursuant to CPLR 3212, dismissing the complaint and all cross claims by defendant Town of Brookhaven against it is granted to the extent of granting summary judgment dismissing the cross claims for common-law indemnification and contribution against it and is otherwise denied; and it is further

ORDERED that the motion by defendant Town of Brookhaven for an order pursuant to CPLR 3212, dismissing the complaint and all cross claims against it is granted.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff between 4:30 p.m. and 5 p.m. on February 16, 2007 when she slipped and fell on an ice-glazed sidewalk leading to the ferry terminal building located at 102 West Broadway, Port Jefferson, New York. The plaintiff alleges that the accident took place "approximately 75 feet north of the Ferry access service lane running adjacent to Broadway and approximately 8 feet east of the curb adjacent to the parking spaces in the Ferry parking lot on the sidewalk portion of the walkway east of the red brick portion."

It appears on the record provided that a portion of the ferry terminal building and the adjoining grounds is owned by the Town of Brookhaven ("the Town") and leased to The Bridgeport & Port Jefferson Steamboat Company ("Bridgeport"), but that the sidewalk at the site of the plaintiff's accident is not within the leased premises. It also appears that the sidewalk provides access to the town marina, a town parking lot, and various shops and restaurants in the village's "downtown" area in addition to the ferry terminal building. Although it neither owned nor leased the sidewalk, Bridgeport acknowledges that it assumed responsibility for snow removal on the sidewalk in order to comply with section 215-12 of the Code of the Village of Port Jefferson, which generally requires owners and possessors of property to remove snow and ice from abutting public sidewalks.

The plaintiff pleads two causes of action in its amended complaint, both of which are premised on the defendants' alleged negligence in failing to remove snow and ice from the sidewalk—the first is against all of the defendants, while the second is solely against Bridgeport. Each of the defendants asserts cross claims against the others for common-law indemnification and contribution. Additionally, the Town purports to have commenced a third-party action against Bridgeport, pleading three causes of action: the first, for contractual indemnification, the second, [*3]for breach of contract, and the third (seemingly redundantly), for common-law indemnification and contribution.^[FN1]

By stipulation of the parties dated February 18, 2014 and filed May 28, 2014, the action was discontinued against defendant The Village of Port Jefferson only.

Now, discovery having been completed and a note of issue having been filed on May 14, 2014, Bridgeport timely moves for summary judgment on the grounds that it did not own or lease the portion of the sidewalk where the accident occurred and that it did not owe any legal duty to third parties, such as the plaintiff, with respect to snow and ice removal.

Bridgeport's motion is denied. Based on the photographic evidence and other proof submitted by the parties, the court finds an issue of fact sufficient to defeat summary judgment whether the sidewalk was used primarily as an access way to and from the ferry terminal building; if so, Bridgeport may be held to have breached its duty as a common carrier to maintain that approach in a safe condition (see Bingham v New York City Tr. Auth., 8 NY3d 176, 832 NYS2d 125 [2007]).

The Town separately (and timely) moves for summary judgment on the ground that it did not receive prior written notice of the alleged dangerous condition as required under section 84-1 of the Code of the Town of Brookhaven. Section 84-1 (A) provides, in relevant part, that no civil action shall be maintained against the Town for damages or injuries to person or property sustained by reason of the existence of snow or ice upon any sidewalk ^[FN2] "unless written notice thereof * * * was actually given to the Town Clerk or the Town Superintendent of Highways and there was a failure or neglect to cause such snow or ice to be removed, or to make the place otherwise reasonably safe within a reasonable time after receipt of such notice."

In support of its motion, the Town submits the affidavit of Linda Sullivan, a senior clerk typist employed in the office of the town clerk, and the affidavit of Marie Angelone, a neighborhood aide for the office of the superintendent of highways. Their sworn testimony reflects that, consistent with their job duties, they conducted a search of the records maintained by their respective offices [*4]for any written notices regarding the presence of snow or ice at the location of the plaintiff's accident between June 21, 2006 and February 17, 2007 but that their offices did not receive any such notices.

The Town's motion is granted in its entirety. As to lack of written notice, the court finds the Town's proof sufficient to establish, prima facie, its entitlement to judgment as a matter of law (see Velho v Village of Sleepy Hollow, 119 AD3d 551, 987 NYS2d 879 [2014]; see also Scafidi v Town of Islip, 34 AD3d 669, 824 NYS2d 410 [2006]). To defeat summary judgment, therefore, it was incumbent upon the plaintiff to submit competent evidence that the Town affirmatively created the defect or that its special use of the property resulted in a special benefit (see e.g. Magee v Town of Brookhaven, 95 AD3d 1179, 945 NYS2d 177 [2012]). The plaintiff failed to do so. Instead, relying on Maccarello v County of Suffolk (100 AD3d 972, 954 NYS2d 609 [2012]) and Dick v Town of Wappinger (63 AD3d 661, 880 NYS2d 180, appeals dismissed 13 NY3d 834, 890 NYS2d 449 [2009]), the plaintiff argues that no prior notice was required because the Town was acting in its proprietary capacity as a landowner. That argument is rejected. Even were the court to overlook the fact that this theory of recovery was never previously raised (see Palka v Village of Ossining, 120 AD3d 641, 992 NYS2d 273 [2014]; Methal v City of New York, 116 AD3d 743, 984 NYS2d 71 [2014]), there is no evidence in the record to suggest that the plaintiff's accident took place on property leased by the Town, whether to Bridgeport or to anyone else, or that the sidewalk was used for any purpose other than as a public walkway. Summary judgment is granted, therefore, dismissing the complaint and all cross claims against the Town, and the Town's own cross claims for common-law indemnification and contribution are dismissed as academic.

The court directs that the claims as to which summary judgment was granted are hereby severed and that the remaining claims shall continue (see CPLR 3212 [e] [1]).

HON. WILLIAM B. REBOLINI, J.S.C.