Opinion
No. 80 SSM 53.
Decided February 24, 2009
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered April 25, 2008. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), which had denied defendant's motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, (2) granted the motion, and (3) dismissed the complaint.
Plaintiff commenced a personal injury action to recover damages for injuries sustained when she slipped and fell on snow or ice on the sidewalk abutting defendant's property and asserted that defendant was liable pursuant to section 413-50 (A) of the Code of the City of Buffalo. The Appellate Division concluded that section 413-50 (A) did not impose liability upon defendant for the failure to "keep [the] sidewalk . . . free and clear of and from snow, ice and all other obstructions."
Smalley v Bemben, 50 AD3d 1470, affirmed.
Law Offices of Michael G. Dwyer, PLLC, Williamsville ( Michael G. Dwyer of counsel), for appellant.
Barth Sullivan Behr, Buffalo ( Laurence D. Behr of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs.
Unless a statute or ordinance " clearly imposes liability upon" an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk ( Roark v Hunting, 24 NY2d 470, 475 [emphasis added]; Jacobs v Pasquale, 281 AD2d 891, 892 [4th Dept 2001]). In 1997, the City of Buffalo amended section 413-50 (A) of its City Code to impose two duties on landowners: (1) removing snow and ice on abutting sidewalks before 9:00 A.M. and (2) making, maintaining and repairing abutting sidewalks. The plain language of section 413-50 (A) only imposes liability with respect to the second duty. While the legislative history of the 1997 amendment may also be read as indicating that the amendment was intended to impose liability on landowners for failing to remove snow and ice from city sidewalks abutting their property ( see Montes v City of Buffalo, 295 AD2d 896, 897 [4th Dept 2002], lv denied 99 NY2d 504), the terms of the Code do not clearly subject landowners to such liability.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.