Shatzel v. 152 Buffalo St., Ltd.

• Decision Date: 19 June 2015
• Docket Number: 649 CA 13-00580
• Citation: 129 A.D.3d 1626,13 N.Y.S.3d 715,2015 N.Y. Slip Op. 05333
• Parties: Ruth A. SHATZEL, as Administratrix of the Estate of Ruth Raynak, Deceased, Plaintiff–Respondent, v. 152 BUFFALO STREET, LTD., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1626

13 N.Y.S.3d 715

2015 N.Y. Slip Op. 05333

Ruth A. SHATZEL, as Administratrix of the Estate of Ruth Raynak, Deceased, Plaintiff–Respondent

v.152 BUFFALO STREET, LTD., Defendant–Appellant.

649 CA 13-00580

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

June 19, 2015.

Cohen & Lombardo, P.C., Buffalo (Jonathan D. Cox of Counsel), for Defendant–Appellant.

Paul William Beltz, P.C., Buffalo (William A. Quinlan of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and DeJOSEPH, JJ.

OpinionMEMORANDUM:

In this negligence action, plaintiff seeks damages for injuries allegedly sustained by 81–year–old Ruth Raynak when she tripped and fell on an allegedly defective sidewalk abutting property owned by defendant. According to plaintiff, the sidewalk slabs of concrete were uneven, thus posing a tripping hazard. Following discovery, defendant moved for summary judgment dismissing the complaint against it, contending that it had no duty to maintain or repair the sidewalk, and plaintiff cross-moved for, inter alia, partial summary judgment against defendant on the issue of negligence. As relevant to this appeal, Supreme Court denied defendant's motion and granted that part of the cross motion with respect to defendant. We modify the order by denying the cross motion in its entirety.

With respect to defendant's motion, “it is well established that, as an abutting landowner, [defendant] is not liable for injuries sustained as the result of a defect in the sidewalk unless[, inter alia,] ... there is a local ordinance charging [defendant] with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from [defendant's] failure to do so” (Guadagno v. City of Niagara Falls, 38 A.D.3d 1310, 1311, 832 N.Y.S.2d 732 ; see Hausser v. Giunta, 88 N.Y.2d 449, 452–453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ).

Here, in opposition to the motion, plaintiff submitted relevant portions of the General Code of the Village of Hamburg (Village), which charges landowners such as defendant with the duty to “repair, keep safe and maintain any sidewalk abutting [the landowner's] premises,” and imposes liability on the landowner “for any injury or damage by reason of omission or failure to repair, keep safe, and maintain such sidewalk” (Village of Hamburg General Code § 203–26[B]; see § 203–28[A] [2] ).

We conclude that, by submitting that local ordinance, plaintiff raised an issue of fact whether defendant breached the duty imposed on it to maintain the sidewalk abutting its property. Although defendant contends that the alleged defect in the sidewalk was created by a tree root that it had no authority to disturb because it originated from a tree on property owned and maintained by the Village, we note that the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the...