In Coffey v. City of Corning, the Fourth Department reversed a summary judgment motion made by the defendant which was denied at the trial court level. In this case, the plaintiff brought a negligence action against the City of Corning after she slipped and fell on ice in a parking lot owned by the defendant. The City of Corning moved to dismiss pursuant to a motion for summary judgment as it had not received prior written notice. The court noted, “where a municipality meets its initial burden on its summary judgment motion by establishing that it had not received prior written notice as required by its prior written notification law, the burden shifts to the plaintiffs to show that an issue of facts exists whether the defendant had received prior written notice or to demonstrate the applicability of one of the two recognized exceptions.” The two recognized exceptions are (1) that the municipality affirmatively created the defect through an act of negligence, (2) that a special use resulted in a special benefit to the locality.
The court concluded that the defendant met its initial burden by showing that there was a prior written notice statute in place and that the City had never received prior written notice. The court noted that the burden then shifted to the plaintiff to raise a triable issue of fact. The court held that there was no evidence on the record establishing that the City created the defect, or derived a special benefit from the property unrelated to public use. As such, the court reversed the denial of the summary judgment motion.

Fourth Department Grants Appeal Dismissing Complaint in Labor Law Case
In Collver v. Fornino Realty, LLC, the Fourth Department reversed a trial court order upholding the plaintiff’s Labor Law §200 and common-law negligence causes of action. This case arose when the plaintiff was injured when descending a staircase which collapsed beneath him. At the time this occurred, he was working on a construction project on the property owned by defendant, Fornino Realty, LLC. In this instance, there was evidence on the record that screws were missing from the staircase and a block at the base had been removed which was used to secure the staircase. The court stated, “Generally, landowners have a duty to maintain their properties in reasonably safe condition and Labor Law §200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site. Thus, with respect to both common-law negligence and Labor Law §200 claims based on a dangerous premises condition, a defendant landowner has the initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of [the] dangerous condition.”
The court stated, here, the defendants met their initial burden by showing that they did not have actual notice of any dangerous condition. The defendants offered proof that defendant Michael Fornino was not aware of the missing screws and had used the staircase on the previous evening and noticed no issue. Accordingly, the burden shifted to the plaintiff to raise a triable issue of fact as to actual notice and the court stated no such issue of fact was raised. Turning to constructive notice, the court stated, “For a property owner to be on constructive notice a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the property owner or the property owner’s] employees to discover and remedy it.” The court held that there was no evidence of constructive notice and the plaintiff did not raise a triable issue of fact in turn. As such, the court dismissed the plaintiff’s remaining causes of action under Labor Law §200 and common-law negligence.
Fourth Department Rules That Snowplow Driver Was Subject to Negligence Standard Only in Car Accident Case
In Plummer v. Town of Greece, the court affirmed the trial court’s denial of the defendant’s motion for summary judgment. The plaintiff commenced the action when she was injured in a rear-end collision when a snowplow owned by the Town of Greece hit into the plaintiff’s vehicle. The defendant argued that the standard of care that applied is the reckless disregard standard under VTL §1103. Under this standard, cars being driven by municipality employees pursuant to their duties are afforded a more lenient standard of care. This is especially important in the cases of police officers and firefighters who are heading towards the scene of an accident and must respond with haste. The reckless disregard standard, in that situation, would offer the police officer or firefighter more latitude in how they respond to the emergency. Thus, the court stated, “Vehicle and Traffic Law § 1103 (b) exempts from the rules of the road all vehicles, including [snowplows], which are actually engaged in work on a highway and imposes on such vehicles a recklessness standard of care.” The court narrowed this however, and noted that this standard only applies when “such work is in fact being performed at the time of accident.” In other words, the reckless disregard standard only applies while the snowplow drivers are actually performing their duties.
The court held that here that the defendant Town of Greece failed to establish as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the accident. The record supported that driver was not on his “beat” at the time of the accident. The court held that it was not established as a matter of law that the driver was not merely driving from one route to the next. Instead, the court concluded that there was a question of fact as to whether the driver was engaged in his duties at the time of accident. As such, the court concluded that the defendant did not meet its burden, and as such the summary judgment motion was properly denied.

Fourth Department Dismisses Complaint Against Town of Tonawanda and Town of Amherst
In Nicholas T. v. Town of Tonawanda & Town of Amherst, et al, the Fourth Department affirmed the trial court order dismissing the complaint against the municipalities. In this case the decedent was killed when she was struck by a vehicle while crossing Niagara Falls Boulevard which is the boundary line between Tonawanda and Amherst. The plaintiff asserted the Towns negligently maintained the road. Both Towns moved to dismiss on the theory that they have no duty of care regarding the road. The Court stated, “A municipality has no duty to maintain in a reasonably safe condition a road it does not own or control unless it affirmatively undertakes such a duty.”
The court said, here, the Towns undertook no duty to maintain Niagara Falls Boulevard and as such had no duty to maintain the road. The plaintiff also argued that under Highway Law §327, the Towns had an affirmative duty to adequately light the roads. The court noted that there is no such duty, and that instead the obligation to light roads is entirely discretionary. Therefore, the court affirmed the dismissal of the complaint.
Fourth Department Affirms Custody Decision Awarding Custody to Grandparents
In Matter of Matthews v. Allen, the Fourth Department affirmed the custody decision of the trial court which the child’s mother had appealed under Article 6 of the Family Court Act. The court agreed that the trial court properly found extraordinary circumstances and in the best interest of the child properly awarded custody to the child’s grandparents. The court stated, “As between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” The court noted that the nonparent has the burden to show extraordinary circumstances, and until that showing, the issue of the best interest of the child is not reached.
The court found that the grandparents met their initial burden. The court stated that the child had lived with her grandparents since 2017 when the mother gave temporary custody to the child while she was homeless. The mother thereafter did not request the custody of her child, only visitation. Custody of the child was not sought by the mother until the instant action. The court held that “the evidence therefore establishes that the mother did not make any serious attempts to regain custody or resume a parental role in the child’s life for more than 24 months. Although the mother had weekly phone calls or video chats with the child, voluntary relinquishment does not require the complete severance of all ties between a parent and a child, and may be found where . . . a parent continues to maintain contact.” Thus, the court reached the issue of the best interest of the child. The court concluded that the award of sole physical custody to the grandparents was proper. The record established that the child has a close bond with her grandparents, that while in their custody she has had regulars visits with her father and siblings, and that the grandparents have facilitated the child’s education. As such, the court held that there was a “substantial basis” to affirm the trial court’s decision.
Prepared by Canio J. Marasco, III