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Smalley v. Bemben

NEW YORK COURT OF APPEALS


February 24, 2009

LINDA SMALLEY, APPELLANT,
v.
MATTHEW J. BEMBEN, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MEMORANDUM

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 [1969] [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 [2002]), 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, order affirmed, with costs, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

20090224

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