Pardi v. Barone

• Decision Date: 13 May 1999
• Citation: 690 N.Y.S.2d 315,257 A.D.2d 42
• Parties: , 1999 N.Y. Slip Op. 4615 Siri PARDI et al., Respondents, v. Joseph BARONE et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 315

690 N.Y.S.2d 315

257 A.D.2d 42, 1999 N.Y. Slip Op. 4615

Siri PARDI et al., Respondents, v. Joseph BARONE et al., Appellants.

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

May 13, 1999.

Bohl, Della Rocca & Dorfman (Charles A. Bohl of counsel), Albany, for appellants.

Bendall & Mednick (Gary P. Delisle of counsel), Schenectady, for respondents.

Before: CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered April 16, 1998 in Schenectady County, which denied defendants' motion for summary judgment dismissing the complaint.

This personal injury action arises out of plaintiff Siri Pardi's slip and fall on the improved concrete public sidewalk in front of residential property owned by defendants in the City of Schenectady, Schenectady County. According to plaintiffs, the slip and fall was caused by an accumulation of snow and ice on the sidewalk. Section 228-18 of the Zoning Ordinance of the City of Schenectady provides, inter alia, that the owner of lands "abutting" any street shall keep "the sidewalks adjoining [the owner's] lands" free and clear of snow and ice and shall be liable for any injury caused by the failure to do so. After issue was joined and discovery was conducted, defendants moved for summary judgment dismissing the complaint on the ground that section 228-18 is inapplicable to their property and there is no other basis upon which to impose liability on them in this case. In support of their motion for summary judgment, defendants submitted a survey which, according to defendants, establishes as a matter of law that their property does not touch, and therefore does not "adjoin", the sidewalk along the front of their property and, thus, they had no obligation to keep the sidewalk clear of ice and snow under the ordinance, nor does the ordinance impose any liability on them. Supreme Court denied defendants' motion and they now appeal.

We affirm. It is undisputed that the approximately six-foot strip of land which exists between the sidewalk and the defendants' property does not belong to an intervening third party but, instead, is owned by the City; importantly, this strip of land is part of the larger municipal right-of-way within which the street and sidewalk are located (see, Farnsworth v. Village of Potsdam, 228 A.D.2d 79, 82, 651 N.Y.S.2d 748 [sidewalk is considered part of the street]; Donnelly v. Village of Perry, 88 A.D.2d 764, 765, 451 N.Y.S.2d 494; see also, Schillawski v. State of New York, 9 N.Y.2d 235, 238, 213 N.Y.S.2d 68, 173 N.E.2d 793).

The question which befalls this court is whether private property "adjoins" a public sidewalk within the meaning of section 228-18 where, as here, there is a narrow, municipally owned strip of land which is part of the municipal right-of-way between the private property boundary line and the improved public sidewalk. It appears to be a novel question of statutory interpretation in this State. Notably, the ordinance itself provides no definition of the terms "abutting" or "adjoining" and makes no reference to, or incorporation of, such definitions. A review of various dictionary definitions, commonly understood meanings and common-law definitions of these terms reveals that, although they are often in other contexts viewed as synonymous with touching, these terms are readily and genuinely susceptible of more than one meaning, i.e., they may be interpreted as requiring actual touching or as encompassing merely close, adjacent or proximate (see, e.g., Matter of Schneider v. Rockefeller, 31 N.Y.2d 420, 429, 340 N.Y.S.2d 889, 293 N.E.2d 67; Matter of Common Council of Gloversville v. Town of Johnstown, 37 A.D.2d 459, 460, 327 N.Y.S.2d 28, revd. on others grounds 32 N.Y.2d 1, 342 N.Y.S.2d 841, 295 N.E.2d 644; Baxter v. York Realty Co., 128 App.Div. 79, 80, 112 N.Y.S. 455, affd. 198 N.Y. 521, 92 N.E. 1078; Black's Law Dictionary 41 [6th ed. 1990]; Webster's Third New International Dictionary 8, 26, 27 [1993 ed.] ). ¹ Indeed, there exists no single plain or clearly accepted meaning for these terms and, thus, they are ambiguous and require interpretation.

It is our foremost duty in resolving such a statutory ambiguity to ascertain and give effect to the legislative intent and objective underlying this ordinance (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 92, at 176-182; see also, McKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 95, 96). While we must do so in the absence of any direct proof regarding the legislative intent, we have no difficulty in doing so, as we perceive the intent to be fairly evident and obvious.

At common law, the duty of maintaining the sidewalks--which are recognized as part of the street or highway--in a safe condition belonged to the municipality (see, Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896). However, where an ordinance, statute or municipal charter specifically imposes both a duty to maintain the sidewalk and liability to injured third parties for failure to do so, the adjoining property owner must assume the duty or face liability; however, if only a duty and no liability is imposed, the adjacent landowner generally may not be held so accountable (see, Willis v. Parker, 225 N.Y. 159, 121 N.E. 810; City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937; see also, Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470; Dufrane v. Robideau, 214 A.D.2d 913, 914, 626 N.Y.S.2d 292; Stewart v. Town of Waterford, 152 A.D.2d 837, 838, 543 N.Y.S.2d 770; Conlon v. Village of Pleasantville, 146 A.D.2d 736, 537 N.Y.S.2d 221; Kiernan v. Thompson, 137 A.D.2d 957, 958, 525 N.Y.S.2d 380).

Ordinances, such as the one sub judice, were adopted with these common-law principles as a backdrop, and impose both a duty and concomitant liability. Indeed, this ordinance follows the trend of most communities seeking to keep their municipal sidewalks clear of ice, snow and debris while shifting both the responsibility to maintain and any liability to owners whose properties lie along the rights-of-way...