Justice Thomas Feinman
Shaherison Realty moved for summary judgment, and Town of Hempstead and Jasmine House Rest. cross-moved for summary judgment dismissing the complaint. Barbera sought to recover for personal injuries sustained after a trip and fall on a sidewalk at a shopping center of which Shaherison was the landlord. Barbera claimed he fell on snow and ice on the sidewalk. The courts recognized two exceptions to the statutory rule requiring prior notice to a municipality—where the locality created the defect or hazard through an affirmative act of negligence, and where "special use" conferred a special benefit on the locality. Shaherison argued it could not be liable as it was an out-of-possession landlord and did not create the complained of condition, nor was it responsible for snow and ice removal as defendants were responsible for same under their leases. Yet, the court found a question of fact existed as to the degree of control Shaherison exerted over the premises, noting defendants paid Shaherison monthly maintenance fees to maintain the common areas of the shopping center, including snow and ice removal. Therefore, the questions of fact precluded the parties' motions for summary judgment.
