| Smalley v Bemben |
| 2008 NY Slip Op 03740 [50 AD3d 1470] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Linda Smalley, Respondent, v Matthew J. Bemben,Appellant. |
—[*1] Law Offices of Michael G. Dwyer, PLLC, Williamsville (Michael G. Dwyer of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered July18, 2007 in a personal injury action. The order denied the motion of defendant to dismiss thecomplaint pursuant to CPLR 3211 (a) (7).
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action to recover damages for injuries she sustainedwhen she slipped and fell on snow or ice on the sidewalk abutting defendant's property. We agreewith defendant that Supreme Court erred in denying his motion to dismiss the complaint forfailure to state a cause of action (see CPLR 3211 [a] [7]).
According to plaintiff, defendant is liable pursuant to section 413.50 (A) of the Code of theCity of Buffalo (Code), which provides in relevant part that the owner of any premises abutting apublic street must "remove, before 9:00 a.m., all snow and ice which may have fallen upon thesidewalk abutting said premises . . . and shall keep such sidewalk . . .free and clear of and from snow, ice and all other obstructions." That section of the Code furtherprovides that "[s]uch owner . . . shall be liable for any injury or damage by reasonof omission, failure or negligence to make, maintain or repair such sidewalk." We cannot agreewith plaintiff that defendant is liable pursuant to the Code. Although owners of land abuttingpublic property generally "are not liable for keeping that public property in a safe conditionmerely by reason of the proximity of their property . . . , an exception to the generalrule exists where a municipal ordinance expressly imposes a duty on the landowner to maintain asidewalk or curb and states that a breach of that duty will result in liability to injured thirdparties" (DiMaio v Pozefsky, 35AD3d 1136, 1136-1137 [2006] [internal quotation marks omitted]). Because section 413.50(A) of the Code is "a statute in derogation of the common law," it must be construed narrowly(id. at 1137; see Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 86[1995]), and we conclude that it does not render owners of property abutting a public sidewalkliable for injuries resulting from the failure to remove snow and ice therefrom.
" '[W]e must presume that the City Council was aware of the common-law rule and [*2][derogated from] it only to the extent indicated by the clear importof its enactment' " (Krohn v New YorkCity Police Dept., 2 NY3d 329, 336 [2004], quoting Juarez v Wavecrest Mgt.Team, 88 NY2d 628, 646 [1996]). In narrowly construing section 413.50 (A) of the Code, aswe must (see Oden, 87 NY2d at 86), we note that, in amending that section in 1997, theCity created two distinct duties for a property owner. The first is to "make, maintain and repairthe sidewalk adjoining his [or her] lands," while the second is to "keep such sidewalk. . . free and clear of and from snow, ice and all other obstructions." Section 413.50(A) then expressly imposes liability upon a property owner only with respect to the first duty, bysetting forth that such owner "shall be liable for any injury . . . by reason ofomission, failure or negligence to make, maintain or repair such sidewalk." That section does not,however, set forth that it applies to the second duty concerning snow, ice and all otherobstructions. Thus, contrary to plaintiff's contention, we conclude that section 413.50 (A) of theCode does not impose liability upon defendant for the failure to "keep [the] sidewalk. . . free and clear of and from snow, ice and all other obstructions."Present—Martoche, J.P., Lunn, Fahey, Peradotto and Pine, JJ.