Majority
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated July 22, 2008, which granted the defendant’s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff slipped and fell on a patch of ice in a municipal parking lot of the Village of Mamaroneck. The Village demonstrated its prima facie entitlement to judgment as a matter of law by submitting proof that there was no prior written notice of the existence of the icy condition. Contrary to the plaintiff’s contention, the prior written notice requirements of Village Law § 6-628 and CFLR 9804 are applicable to a municipal parking lot (see Powell v Town of Hempstead, 61 AD3d 950 , 951 [2009]; Peters v City of White Plains, 58 AD3d 824 , 825 [2009]; San Marco v Village/Town of Mount Kisco, 57 AD3d 874 , 876 [2008]; Walker v Incorporated Vil. of Freeport, 52 AD3d 697 [2008]; Tuzzolo v Town of Hempstead, 292 AD2d 446 , 447 [2002]). While the plaintiffs contention in this regard, premised on Walker v Town of Hempstead ( 84 NY2d 360 [1994]) is not without some logical appeal, we are not persuaded that a departure from our long-standing precedents in this area is warranted. The plaintiff failed to raise a triable issue of fact on the question of notice. Neither actual nor constructive notice of a condition is sufficient to satisfy the requirement of prior written notice (see McCarthy v City of White Plains, 54 AD3d 828 , 829 [2008]; Ferreira v County of Orange, 34 AD3d 724 , 725 [2006]; Mahler v Incorporated Vil. of Port Jefferson, 18 AD3d 450 [2005]).
The failure to remove all the snow or ice from a parking lot is not an affirmative act of negligence (see Frullo v Incorporated Vil. of Rockville Ctr., 274 AD2d 499 , 500 [2000]; Moore v Village of Pelham, 263 AD2d 448 [1999]; Alfano v City of New Rochelle, 259 AD2d 645 [1999]; Zwielich v Incorporated Vil. of Freeport, 208 AD2d 920 [1994]). The plaintiff failed to adduce any evidence that the patch of ice was created as an immediate consequence of an affirmative act of negligence by the Village. The opinion offered by the plaintiffs expert was, at best, speculative, and was insufficient to raise a triable issue (see Robinson v Trade Link Am., 39 AD3d 616 , 617 [2007]; see also Gershfeld v Marine Park Funeral Home, Inc., 62 AD3d 833 , 834 [2009]). Mastro, J.P., Fisher, Angiolillo and Leventhal, JJ., concur.
Cases cited
- Powell v. Town of Hempstead 61 AD3d 950 at 951 p. 733
- Peters v. City of White Plains 58 AD3d 824 at 825 p. 733
- San Marco v. Village/Town of Mount Kisco 57 AD3d 874 at 876 p. 733
- Walker v. Incorporated Village of Freeport 52 AD3d 697 p. 733
- Tuzzolo v. Town of Hempstead 292 AD2d 446 at 447 p. 733
- Walker v. Town of Hempstead 84 NY2d 360 p. 733
- McCarthy v. City of White Plains 54 AD3d 828 at 829 p. 733
- Ferreira v. County of Orange 34 AD3d 724 at 725 p. 733
- Mahler v. Incorporated Village 18 AD3d 450 p. 733
- Yarborough v. City of New York 10 NY3d 726 at 728 p. 734
- Oboler v. City of New York 8 NY3d 888 at 889 p. 734
- Amabile v. City of Buffalo 93 NY2d 471 at 474 p. 734
- Frullo v. Incorporated Village of Rockville Centre 274 AD2d 499 at 500 p. 734
- Alfano v. City of New Rochelle 259 AD2d 645 p. 734
- Gershfeld v. Marine Park Funeral Home, Inc. 62 AD3d 833 at 834 p. 734