Appio v. City of Albany

• Decision Date: 23 November 1988
• Citation: 144 A.D.2d 869,534 N.Y.S.2d 811
• Parties: Judith APPIO et al., Respondents, v. CITY OF ALBANY, Defendant, and William H. Decker et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 811

534 N.Y.S.2d 811

144 A.D.2d 869

Judith APPIO et al., Respondents, v. CITY OF ALBANY, Defendant, and William H. Decker et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Nov. 23, 1988.

Welt, Stockton & Associates (Dixon Welt, of counsel), Albany, for William H. Decker and Decker's Plumbing and Heating.

DeAngelis, Kaplowitz, Rice & Murphy (Jay Smith, of counsel), Delmar, for Judith Appio et al.

Vincent McArele, Jr. (Stephen Rehfuss, of counsel), Albany, for City of Albany.

Before MAHONEY, P.J., and KANE, CASEY, YESAWICH and MERCURE, JJ.

CASEY, Justice.

Appeal from that part of an order of the Supreme Court (McDermott, J.), entered July 13, 1987 in Albany County, which, inter alia, denied a motion by defendants William H. Decker and Decker's Plumbing and Heating, Inc. for summary judgment dismissing the complaint against them.

Defendants William H. Decker and Decker's Plumbing and Heating, Inc. (hereinafter defendants), the owner and lessee of property on Washington Avenue in defendant City of Albany, contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint against them which seeks to recover damages as a result of a fall by plaintiff Judith Appio on the public sidewalk in front of defendants' property. We agree.

The well-settled general principle of law applicable in cases such as this precludes the imposition of liability on the owner or occupier of property solely by reason of his being an abutter to the public sidewalk where the injury occurred (Kiernan v. Thompson, 137 A.D.2d 957, 958, 525 N.Y.S.2d 380; Blais v. St. Mary's of Assumption R.C. Church of Waterford, 89 A.D.2d 653, 453 N.Y.S.2d 117; Colson v. Wood Realty Co., 39 A.D.2d 511, 512, 337 N.Y.S.2d 487). The principle finds its roots in the absence of any common-law duty to repair or maintain a public sidewalk owed to the public by the abutting property owner or occupier (see, City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937). There is, however, an exception to the general principle where a statute, ordinance or municipal charter imposes liability upon abutting owners or occupiers for injuries caused by their negligent maintenance of the public sidewalk (see, Colson v. Wood Realty Co., supra ). In order to create such liability, however, the language of the statute, ordinance or charter must not only charge the abutting owner or occupier with a duty to maintain the public sidewalk, but it must also specifically state that a breach of that duty will result in liability to those who are injured by defects in the sidewalk (Kiernan v. Thompson, supra ). The ordinance herein...