Connerton v. City of Binghamton ( 1997 )

Casey, J.

Appeal from an order of the Supreme Court (Coutant, J.), entered March 20, 1996 in Broome County, which denied defendants’ motions for summary judgment dismissing the complaint.

As a result of falling on snow that had accumulated on a corner sidewalk in the City of Binghamton, Broome County, plaintiff Jean M. Connerton (hereinafter plaintiff) and her husband derivatively commenced this action for personal injuries against defendants Stuart B. Schiff and Susan J. Schiff, the owners of the abutting property, and defendant City of Binghamton. The Schiffs have moved and the City has cross-moved for summary judgment dismissing plaintiffs’ complaint. Supreme Court denied both motions and defendants appeal.

The motion by the Schiffs was improvidently denied by Supreme Court since plaintiffs failed to demonstrate that the Schiffs caused or created the pile of snow on which plaintiff fell (see, Keane v City of New York, 208 AB2d 457; Palazzo v S.P.H.E. Real Estate, 105 AB2d 1017). Accordingly, the motion by the Schiffs for summary judgment dismissing the complaint against them should be granted.

In regard to the City, it is established that no prior written notice of the accumulation was given. This being so, plaintiffs, in answer to the City’s cross motion for summary judgment, were required to demonstrate an affirmative act of negligence on the City’s part. The testimony of a City employee that City snowplows occasionally pushed snow onto sidewalks while clearing intersections is legally insufficient for such showing. To the extent that our present position conflicts with our prior decision in Gray v Fane (211 AD2d 914), we will no longer follow our prior decision.

Mercure, J. P., White, Peters and Carpinello, JJ., concur. Ordered that the order is reversed, on the law, without costs, motion and cross motion granted, summary judgment awarded to defendants and complaint dismissed.