Clauss v. Bank of Am., N.A.

• Decision Date: 09 June 2017
• Parties: Patricia M. CLAUSS, Plaintiff–Respondent, v. BANK OF AMERICA, N.A., Village of Williamsville, Jones Lang LaSalle Americas, Inc., Defendants–Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1629

57 N.Y.S.3d 273

Patricia M. CLAUSS, Plaintiff–Respondent,

v.BANK OF AMERICA, N.A., Village of Williamsville, Jones Lang LaSalle Americas, Inc., Defendants–Appellants, et al., Defendant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 9, 2017.

Barclay Damon LLP, Buffalo (Hedwig M. Auletta of Counsel), for Defendant–Appellant Jones Lang Lasalle Americas, Inc.

Robert M. Lippman, Buffalo, for Defendant–Appellant Village of Williamsville.

Nash Connors, P.C., Buffalo (James J. Nash of Counsel), for Defendant–Appellant Bank of America, N.A.

The Cosgrove Law Firm, Buffalo (Edward C. Cosgrove of Counsel), for Plaintiff–Respondent.

PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this action against defendant Village of Williamsville (Village) and others to recover damages for injuries that she sustained when she allegedly tripped on an uneven stretch of public sidewalk. In addition to the Village, plaintiff asserted causes of action against the owner of the abutting property, defendant Bank of America, N.A. (Bank of America), as well as the manager of the abutting property, defendant Jones Lang LaSalle Americas, Inc. (Jones Lang).

Bank of America and Jones Lang contend that Supreme Court erred in denying their respective motions for summary judgment dismissing the complaint against them. We agree and therefore modify the order accordingly. "Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner" ( Hausser v. Giunta, 88 N.Y.2d 449, 452–453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ; see Capretto v. City of Buffalo, 124 A.D.3d 1304, 1306, 1 N.Y.S.3d 615 ). "That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk" ( Schroeck v. Gies, 110 A.D.3d 1497, 1497, 973 N.Y.S.2d 515 ; see Hausser, 88 N.Y.2d at 453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ).

We conclude that Bank of America and Jones Lang met their prima facie burden of establishing their entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Although the Code of the Village of Williamsville (Code) imposes a duty on landowners to keep public sidewalks "in good order and repair" (Code § 89–3), it is undisputed that the Code does not "clearly subject landowners to ... liability" for failing to comply with that duty ( Smalley v. Bemben, 12 N.Y.3d 751, 752, 880 N.Y.S.2d 878, 908 N.E.2d 868 ; see § 89–3). It is also undisputed that the public sidewalk was not constructed in a special manner for the property owner's benefit, and that neither Bank of America nor Jones Lang negligently constructed or repaired the sidewalk or otherwise created the defect. Inasmuch as plaintiff concedes on this appeal that none of the exceptions to the general rule apply in this case, we conclude that plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).

The Village contends that the court erred in denying its motion for summary judgment dismissing the complaint against it inasmuch as the defect in the sidewalk is trivial as a matter of law. We reject that contention. "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Grefrath v. DeFelice, 144 A.D.3d 1652,...