We respectfully dissent since we
consider the majority to have construed the complaint too broadly and misapplied Alvord & Swift v Muller Constr. Co. (46 NY2d 276, 281).
The particular allegations of negligence in plaintiffs’ complaint are that the Town "fail[ed] to adequately and properly maintain, repair and control the said roadway; in failing to properly remove ice therefrom; in permitting ice to accumulate on said roadway; in failing to salt and sand the ice on the said roadway and in permitting the dangerous ice condition to exist despite adequate and frequent notice of its existence, and in so maintaining and controlling the roadway that the defendants caused the ice condition to exist” (emphasis supplied).
As we read this complaint it sets forth a number of passive acts of negligence (see, Merchant v Town of Halfmoon, 194 AD2d 1031; Lang v County of Sullivan, 184 AD2d 981; Grant v Incorporated Vil. of Lloyd Harbor, 180 AD2d 716, Iv denied 80 NY2d 761; Albanese v Town of Hempstead, 176 AD2d 697) and in the underscored phrase concludes that by reason of these passive acts defendant Town of Tuxedo caused the ice condition to exist. Thus, unlike the majority, we do not view this complaint as encompassing the affirmative acts of negligence alleged in the affidavit of plaintiffs’ expert.
We further believe that the majority’s reliance upon Alvord & Swift v Muller Constr. Co. (supra) is misplaced because the holding therein applies where the facts presented in a plaintiff’s opposing papers to a motion for summary judgment are within the ambit of a cause of action defectively pleaded in his or her complaint (4 Weinstein-Korn-Miller, NY Civ Prac If 3212.10). Here, the fact that the Town may have committed an affirmative act of negligence is not within the ambit of plaintiffs’ complaint. Therefore, the rule that should be applied to this case is that a party may not defeat a motion for summary judgment on the ground that he or she may have a good cause of action other than as alleged in that party’s complaint (see, Barber v Daly, 185 AD2d 567, 570; Babtkis Assocs. v Tarazi Realty Corp., 34 AD2d 754). Consequently, by application of this rule, Supreme Court correctly granted summary judgment since neither passive negligence or nonfeasance nor actual or constructive notice can substitute for *802written notice where the condition of the highway involves snow or ice (see, Merchant v Town of Halfmoon, supra; Lang v County of Sullivan, supra).
However, given the fact that this matter is still in the pretrial discovery stage, we would, in the interest of justice, permit plaintiffs to apply to Supreme Court for leave to serve an amended complaint (see, Barber v Daly, supra). Thus, the order should be modified by allowing plaintiffs to seek leave to amend.