Rodgers v. Earl

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied that part of defendants’ motion to dismiss the complaint for failure to state a cause of action (see, CPLR 3211 [a] [7]). The complaint, as amplified by the bill of particulars, states a cause of action for negligence based upon the actions of defendants in removing snow from the public sidewalk abutting their property (see generally, Guggenheimer v Ginzburg, 43 NY2d 268, 275). The court also properly denied that part of defendants’ motion that, in the alternative, sought summary judgment dismissing the complaint. Defendants failed to meet their burden of establishing entitlement to judgment in their favor as a matter of law, and that failure requires denial of their motion for summary judgment, regardless of the sufficiency of the opposing papers (see, Jordan v Musinger, 197 AD2d 889). Defendants failed to establish that their snow removal efforts did not create or increase a hazardous condition (see, Jiuz v 991 City of New York, 244 AD2d 298; Keane v City of New York, 208 AD2d 457; Glick v City of New York, 139 AD2d 402, 403). We agree with defendants, however, that they cannot be held liable to plaintiff based upon their alleged violation of the Village of Ilion Code (see, Roark v Hunting, 24 NY2d 470, 475; Giotto v Gaetano, 178 AD2d 978, 979). The court, however, did not deny defendants’ motion on that ground. (Appeal from Order of Supreme Court, Herkimer County, Parker, J. — Summary Judgment.) Present — Pine, J. P., Lawton, Wisner, Balio and Boehm, JJ.