Plaintiff Marsha Serba sues the Town of Glenville for injuries sustained to her shoulder due to slipping and falling in the Town Hall parking lot on November 14, 2018, at 11:00 A.M. following a snowstorm. Among other things, Plaintiff contends in her Bill of Particulars that the Town failed to remove accumulated ice in the parking lot and incorrectly designed said parking lot so as to allow the accumulation of water to pond. Defendant moves for summary judgment to dismiss the complaint pursuant to local Town Law §190-1 which provides:

No civil action shall be maintained against the Town of Glenville for damages or injuries to person or property sustained by reason of any highway, bridge, culvert, highway marking, sign or device or any other property owned, operated or maintained by the Town being defective, out of repair, unsafe, dangerous or obstructed, unless written notice of such defective, unsafe, dangerous or obstructed condition of such highway, bridge, culvert, highway marking, sign or device or any other property owned, operated or maintained by the town was actually given to the Town Clerk of the Town or the Superintendent of Highways of the Town, and there was thereafter a failure or neglect within a reasonable time to repair or remove the defect, danger or obstruction complained of; and no such action shall be maintained for damages or injuries to persons or properties sustained solely in consequence of the existence of snow or ice upon any highway, bridge, culvert or any other property owned by the town unless written notice thereof, specifying the particular place, was actually given to the Town Clerk of the Town or the Superintendent of Highways of the Town, and there was a failure or neglect to cause such snow and ice to be removed or to make the place otherwise reasonably safe within a reasonable time after receipt of such notice.

Accordingly, written notice was required concerning the snow and ice condition in Defendant's parking lot. Under these circumstances actual or constructive notice will not suffice [*2](Stride v. City of Schenectady, 85 AD3d 1409 [3d Dept 2011]). In support of its motion Defendant submits the affidavit of the Town Clerk, Julie Davenport, whose duties include receiving and filing written notices of defects within the Town. Ms. Davenport affies that her prior written notice file contains no prior written notice concerning any defect or snow and ice condition concerning the parking lot in front of the Town of Glenville Municipal Center where the plaintiff claims to have fallen. Additionally, Defendant submits the affidavit of Mr. Thomas Coppola, the Highway Superintendent, who testifies that his office never received any prior written notice concerning any defect or snow and ice condition in the parking lot. Based upon the foregoing Defendant has met its initial burden entitling it to Summary Judgment.

In opposition to the motion Plaintiff, apparently recognizing the lack of written notice, relies upon a narrow exception to the general rule contending that the Town affirmatively created a dangerous condition due to the meeting of the "seams" in the middle of the pavement of the parking lot. In furtherance of this theory, Plaintiff relies upon the affidavit and attached report of Mr. Ernest Gailor, a licensed professional engineer. According to Mr. Gailor's report, which the Court will describe as skeletal at best, Mr. Gailor opines:

The seam created by the paving operation between two internal "pulls" of paving hold water, ice, and snow. The water froze, causing ice to be formed in the seam. As Serba walked over the parking lot, she stepped onto the frozen parking lot surface at the seam. She reportedly fell onto the pavement and was injured.

In the area where Serba fell, the parking lot has a paving seam that holds water. Serba fell onto the ice formed from this water.

The Town of Glenville's failure to properly construct the parking at the hazardous area where Serba fell resulted in dangerous conditions that were causes of her accident.

Mr. Gailor's opinion is conclusory and contains no basis for his findings. There is no description as to why the seam is somehow deficient or defective, or how its installation was negligent or otherwise failed to meet industry standards. There is no description concerning elevation differential, measurements, or any other data in support of his conclusions. Accordingly, this Court finds his affidavit to be utterly speculative, and inadmissible.

Assuming, arguendo, Mr. Gailor's opinion were admissible, the result would be no different. The law requires that for the exception to the general rule to apply, the creation of the defect must immediately create the hazard (Stride, 85 AD3d at 1411 (3 Dept 2011). According to Mike Seburn, an employee of the Town Highway Department, the parking lot was installed sometime within the prior five years. The Court has also reviewed color photographs depicting the seam in question. It appears obvious to the Court that the seam is not fresh but instead has been there for some time.

There being no evidence in the record that the condition alleged to be defective was created immediately, Plaintiff fails to sustain her burden to demonstrate an exception to the general written notice statute. Therefore, based upon the foregoing, it is hereby

ORDERED that the motion of the defendant Town of Glenville is granted, and the Complaint is hereby dismissed.

Notice of Motion; Affirmation of Thomas E. Kelly, Esq., with annexed exhibits; Memorandum of Law; Affirmation in Opposition of Andrea J. DiDomenico, Esq., with annexed exhibits; Affidavit of Marsha Serba; Reply Affirmation of Thomas E. Kelly, Esq.