Storm-in-Progress Does Not Extinguish Structural Sidewalk Defect Claims; Municipality Shielded by Prior Written Notice While Abutting Landowners Face Special-Use Exposure for Driveway Aprons

Introduction

In Gail Votra v. Village of Cambridge et al., 2025 N.Y. Slip Op. 1031 (App Div, 3d Dept, Feb. 20, 2025), the Appellate Division, Third Department, revisits the interaction between the storm-in-progress doctrine, the municipal prior written notice rule, and abutting landowner liability under the special-use doctrine. The case arose from a wintertime slip-and-fall on a public sidewalk in the Village of Cambridge during ongoing snowfall. Plaintiff alleged two concurrent hazards: icy conditions from the storm and a preexisting crevice in the sidewalk near a driveway apron used by the abutting landowners’ tenants.

The trial court granted summary judgment to all defendants under the storm-in-progress doctrine. On appeal, the Third Department modified: it affirmed dismissal of the claim against the Village for lack of prior written notice (and no applicable exception), but reinstated the claim against the abutting landowners, finding triable issues as to whether their special use of the driveway apron imposed a duty to maintain the adjacent sidewalk area and whether the defect was within that area.

Key issues included:

Whether the storm-in-progress doctrine categorically bars liability when a plaintiff also alleges a preexisting structural defect on the sidewalk.
Whether the Village is immune under its prior written notice law absent proof of written notice or an exception (such as immediate creation of the defect by municipal negligence).
Whether abutting landowners may be liable under the special-use doctrine for a defective condition in a sloped driveway apron area of the public sidewalk, and whether an easement used by neighbors alters that analysis.

Summary of the Opinion

The Third Department held that the storm-in-progress doctrine did not end the inquiry because multiple proximate causes may contribute to an accident. Although snow and ice were present, plaintiff also alleged a structural crevice in the sidewalk. The court therefore evaluated the separate liability theories.

As to the Village of Cambridge, the court affirmed summary judgment. The Village established the absence of prior written notice of the crevice as required by its local law. Plaintiff failed to raise a triable issue either as to written notice or as to an exception. In particular, the “affirmative creation” exception did not apply because plaintiff’s proof (including photographs) showed the crevice developed over time, not as the immediate result of municipal action such as plowing or salting.

As to the abutting landowners (Kevin Dupuis and Michelle Vecchione), the court reversed the grant of summary judgment. While abutting landowners generally owe no duty to maintain public sidewalks, the special-use doctrine can impose a duty where the landowner derives a special benefit—such as the construction and use of a driveway apron. Plaintiff’s deposition and photographic evidence created triable issues about the precise location of the fall and whether the landowners’ driveway apron constituted a special use of that portion of the sidewalk. The court rejected the landowners’ argument that a neighbor’s easement over the driveway shifted maintenance responsibility, noting that the neighbors neither owned property abutting the relevant sidewalk nor did plaintiff fall on the easement area.

Disposition: Order modified to deny the landowners’ motion for summary judgment; as modified, affirmed. The case proceeds against the abutting landowners; the Village is out of the case.

Analysis

Precedents Cited and Their Influence

Multiple proximate causes during storms:
- Mejias v City of New York, 183 A.D.3d 886 (2d Dept 2020), and Giannelis v BorgWarner Morse TEC Inc., 167 A.D.3d 1185 (3d Dept 2018) reinforce that accidents can have more than one proximate cause. The Third Department relied on this principle to hold that an ongoing storm does not foreclose liability for a preexisting sidewalk defect alleged to have concurrently caused the fall.
- Vosper v Fives 160th, LLC, 110 A.D.3d 544 (1st Dept 2013) similarly recognizes that storm-in-progress does not immunize non-storm-related hazards, supporting review of the crevice claim.
Appellate resolution in the interest of judicial economy:
- Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 187 A.D.3d 1437 (3d Dept 2020), and Alper Rest., Inc. v Catamount Dev. Corp., 137 A.D.3d 1559 (3d Dept 2016) authorize the appellate court to reach issues not decided below where the record is sufficient. Here, the Third Department elected to resolve the prior written notice and special-use questions rather than remand.
Prior written notice doctrine for municipalities:
- Pfirman v Village of New Paltz, 228 A.D.3d 1098 (3d Dept 2024); Groninger v Village of Mamaroneck, 17 N.Y.3d 125 (2011); Pellett v Town of Milton, 228 A.D.3d 1157 (3d Dept 2024); Cornish v City of Ithaca, 149 A.D.3d 1321 (3d Dept 2017). These authorities establish that absent prior written notice of a defect, municipalities are generally immune unless a narrow exception applies.
- Palo v Town of Fallsburg, 101 A.D.3d 1400 (3d Dept 2012), and Chance v County of Ulster, 144 A.D.3d 1257 (3d Dept 2016) make clear that constructive notice or other actual notice does not substitute for written notice where the local law demands it.
- Oboler v City of New York, 8 N.Y.3d 888 (2007); Harvish v City of Saratoga Springs, 172 A.D.3d 1503 (3d Dept 2019); Vnuk v City of Albany, 191 A.D.3d 1056 (3d Dept 2021); Hubbard v County of Madison, 93 A.D.3d 939 (3d Dept 2012) articulate the “affirmative creation” exception’s immediacy requirement: the municipality’s negligent act must immediately result in the defect; gradual deterioration does not qualify.
Abutting landowner liability and special use of sidewalks:
- General rule against duty: Giannelis v BorgWarner Morse TEC Inc., 167 A.D.3d 1185 (3d Dept 2018); Oles v City of Albany, 267 A.D.2d 571 (3d Dept 1999).
- Special-use exception and driveway aprons: Podhurst v Village of Monticello, 202 A.D.3d 1185 (3d Dept 2022); Marshall v City of Albany, 184 A.D.3d 1043 (3d Dept 2020). These decisions recognize liability where the sidewalk is specially modified (e.g., sloped/constructed for a driveway) for the landowner’s benefit.
- Burden-shifting and triable issues in special-use cases: Keenan v Munday, 79 A.D.3d 1415 (3d Dept 2010); Harris v FJN Props., LLC, 18 A.D.3d 1089 (3d Dept 2005); Melamed v Rosefsky, 291 A.D.2d 602 (3d Dept 2002).
- Easements and maintenance responsibility: Tagle v Jakob, 275 A.D.2d 573 (3d Dept 2000), affd 97 N.Y.2d 165 (2001) provides the general easement framework; Shamilova v Berkowitz, 192 A.D.3d 491 (1st Dept 2021) supports the conclusion that non-abutting easement holders are not liable for sidewalk defects where the fall did not occur on the easement, undermining the landowners’ attempt to shift responsibility.

Legal Reasoning

The court first corrected the trial court’s overbroad application of the storm-in-progress doctrine. While the presence of an ongoing storm generally negates a duty to remove snow and ice until the storm abates and a reasonable time passes, it does not immunize other hazards. Here, plaintiff alleged a structural crevice in the sidewalk that could serve as a separate, concurrent proximate cause of the fall. This required the court to analyze the distinct liability theories tied to the crevice.

On the municipal claim, the Village satisfied its prima facie burden by showing that no prior written notice of the crevice was ever received under its local law. This shifted the burden to the plaintiff to raise a triable issue either of written notice or of a recognized exception. Plaintiff did neither. The court emphasized two settled limits:

Constructive notice cannot substitute for prior written notice where a notice statute governs.
The “affirmative creation” exception is narrow and demands that the municipality’s negligent act immediately create the dangerous condition. Photographs showing a crevice that developed over time defeated any claim of immediacy tied to plowing or salting.

On the abutting landowners’ motion, the usual no-duty rule for sidewalk maintenance yielded to the special-use doctrine once plaintiff adduced evidence that the location of the fall was at the edge of a sloped driveway apron and that the driveway was regularly used by the landowners’ tenants and maintained (including plowing) at the landowners’ direction. Those facts created triable issues about:

Whether the accident location fell within the driveway apron or a specially modified area of the sidewalk, and
Whether the landowners’ special use of that area conferred a duty to maintain it in a reasonably safe condition.

The court dismissed the argument that a neighbor’s easement over the driveway defeated liability. Because the neighbors did not own property abutting the relevant sidewalk segment and the fall did not occur on the easement area, the easement holders could not be liable—leaving the abutting owners’ potential special-use duty intact.

Impact

This decision carries several practical and doctrinal implications:

Scope of storm-in-progress: Plaintiffs injured during storms may still pursue claims based on preexisting structural defects, provided they can separate those hazards from the transient snow/ice condition. Defendants cannot use the storm-in-progress doctrine as a blanket defense to all sidewalk-related claims.
Municipal defenses remain robust: Prior written notice statutes continue to provide strong shields for municipalities. Plaintiffs must marshal proof of written notice or fit within a narrow exception. Arguments grounded in constructive notice will not suffice, and “affirmative creation” requires immediacy, not gradual deterioration.
Heightened exposure for abutting owners using driveway aprons: Landowners whose driveways include a sloped or otherwise modified sidewalk segment face potential liability under the special-use doctrine. Routine tenant use, arrangements for plowing, and the physical configuration of the apron area can create triable issues that defeat summary judgment.
Limits on shifting duty via easements: Abutting owners cannot escape potential special-use liability by pointing to neighbors’ easement rights where the neighbors do not abut the sidewalk and the fall site is not on the easement itself.
Litigation strategy and evidence:
- Plaintiffs should preserve distinct theories (storm-related vs. structural defect), document the exact fall location, and obtain photographs and deposition testimony about driveway configuration and use.
- Municipal defendants should promptly locate and submit written notice records and evidence regarding the absence of notice; plaintiffs must be prepared to respond with documentary proof of written notice or admissible evidence invoking a narrow exception.
- Abutting owners should map property lines, the footprint of driveway aprons, and any municipal permitting records reflecting sidewalk modifications; plaintiffs should seek those same records to show special use.
Appellate practice: The Third Department’s willingness to decide unaddressed issues in the interest of judicial economy underscores the importance of building a complete summary judgment record at the trial level.

Complex Concepts Simplified

Storm-in-Progress Doctrine: A rule that a property owner or municipality generally has no duty to remove snow or ice while a storm is ongoing, or immediately thereafter, until a reasonable time has passed. It does not immunize liability for separate, preexisting structural defects.
Prior Written Notice Law: Many municipalities require written notice of a street/sidewalk defect before they can be liable for injuries caused by that defect. Without such written notice—or a narrow exception—claims against the municipality are barred.
Constructive Notice: Knowledge a party is deemed to have because a condition existed for a sufficient time and was observable. Under prior written notice statutes, constructive notice does not substitute for the required written notice.
Affirmative Creation Exception: An exception to prior written notice requiring proof that the municipality’s negligent act immediately created the dangerous condition. Conditions that evolve over time (e.g., erosion, settling, repetitive freeze-thaw effects) typically do not qualify.
Special-Use Doctrine (Sidewalks): An abutting owner may owe a duty to maintain parts of a public sidewalk specially constructed or modified for the owner’s benefit (such as a driveway apron), exposing the owner to liability for defects in that area.
Driveway Apron: The sloped or modified portion of a sidewalk that transitions to a driveway. Because it is constructed for private ingress/egress, it often implicates the special-use doctrine.
Easement: A nonpossessory right to use another’s land for a specific purpose (e.g., passage). The existence of an easement does not automatically shift sidewalk maintenance liability to the easement holder, especially if the easement holder does not abut the sidewalk and the accident did not occur on the easement area.

Conclusion

Votra v. Village of Cambridge refines the boundaries among three recurring doctrines in winter sidewalk litigation. First, the storm-in-progress doctrine does not defeat claims that a separate structural defect concurrently caused the accident. Second, municipalities remain strongly protected by prior written notice laws; absent written notice or an immediate “affirmative creation” of the defect, municipal liability will be dismissed at summary judgment. Third, abutting landowners may face liability under the special-use doctrine for defects in driveway aprons or specially modified sidewalk areas, and they cannot sidestep that exposure by pointing to third-party easements where the fall site and abutting status do not align with the easement.

The decision provides a clear roadmap for evaluating multi-causal winter falls: isolate the storm-related aspects from structural defects, apply the strictures of prior written notice to municipal defendants, and probe special-use facts for abutting owners. Going forward, litigants should expect closer scrutiny of driveway apron configurations and usage patterns, careful mapping of accident locations, and rigorous proof regarding written notice and narrow exceptions in municipal cases.