The opinion
Mahoney, P. J., and Weiss, J.,
dissent and vote to reverse in
a memorandum by Weiss, J. Weiss, J. (dissenting). We respectfully dissent. There is no question that prior written notice of the alleged defect as required by Town Law § 65-a (2) was not provided. Absent such notice, the town may be liable for instances of affirmative negligence (see, Waring v City of Saratoga Springs, 92 AD2d 1080 ; Siddon v Fishman Co., 65 AD2d 832, 833 , lv denied 46 NY2d 714 ), but as the majority explains, the mere failure to clear ice and snow from a municipal walkway does not trigger the affirmative negligence exception to Town Law § 65-a (2) (see, Radicello v Village of Spring Val., 115 AD2d 466 ; Ritacco v Town/Village of Harrison, 105 AD2d 834 ).
Plaintiff urges, nonetheless, and we agree, that the facts peculiar to this case take it out of the scope of Town Law § 65-a (2). This is clearly not an instance where an injury was related to the accumulation of snow and ice in some remote area of the town. The various depositions confirm that town officials were well aware of the annual accumulations of snow on the subject sidewalk, which was situated in the town business district, and had even retained private contractors between 1979 and 1980 to remove same. Since that time, town officials discussed the continuing snow problem, but opted not to authorize further removal operations. In the meantime, the State has continued to plow Tinker Street, but not the sidewalks. The net effect is an annual accumulation of snow and ice on the sidewalks which plaintiff maintains precipitated decedent’s demise. Given these unique circumstances, we find that the absence of prior written notice is not fatal to plaintiff’s claim (see, Klimek v Town of Ghent, 114 AD2d 614, 615 ; Blake v City of Albany, 63 AD2d 1075 , affd 48 NY2d 875 ; see also, Kiernan v Thompson, 73 NY2d 840 ; cf., Holt v County of Tioga, 95 AD2d 934, 936 , mot to dismiss appeal granted 60 NY2d 701 ). Since triable issues of fact have been raised as to the town’s liability, Supreme Court erred in granting summary judgment in the town’s favor (see, Quinn v County of Sullivan, 48 AD2d 965 ). Moreover, the town has failed to *968 establish how the decision not to authorize snow removal from Tinker Street comes within the qualified immunity doctrine delineated in Weiss v Fote ( 7 NY2d 579 ) (see, Bailey v Honda Motor Co., 144 AD2d 119 ).