PATRICIA M. CLAUSS, PLAINTIFF-RESPONDENT,
BANK OF AMERICA, N.A., VILLAGE OF WILLIAMSVILLE, JONES LANG LASALLE AMERICAS, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT.
BARCLAY DAMON LLP, BUFFALO (HEDWIG M. AULETTA OF COUNSEL),
FOR DEFENDANT-APPELLANT JONES LANG LASALLE AMERICAS, INC.
M. LIPPMAN, BUFFALO, FOR DEFENDANT-APPELLANT VILLAGE OF
CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR
DEFENDANT-APPELLANT BANK OF AMERICA, N.A.
COSGROVE LAW FIRM, BUFFALO (EDWARD C. COSGROVE OF COUNSEL),
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN,
from an order of the Supreme Court, Erie County (Catherine R.
Nugent Panepinto, J.), entered April 28, 2016. The order
denied the motions of defendants for summary judgment.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting the motions of defendants
Bank of America, N.A., and Jones Lang LaSalle Americas, Inc.,
and dismissing the complaint against them, and as modified
the order is affirmed without costs.
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).
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; see Capretto v City of Buffalo, 124 A.D.3d
1304, 1306). "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; see Hausser, 88 N.Y.2d at 453).
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). 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; 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).
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 [internal quotation marks
omitted]; see Grefrath v DeFelice, 144 A.D.3d 1652,
1653). In determining whether a defect is trivial as a matter
of law, a court "must consider all the facts and
circumstances presented' " (Hutchinson v
Sheridan Hill House Corp., 26 N.Y.3d 66, 77; see
Stein v Sarkisian Bros., Inc., 144 A.D.3d 1571,
1571-1572). Such facts and circumstances may include the
alleged defect's dimensions, appearance, or elevation,
and the time, place, and circumstances of the plaintiff's
injury (see Hutchinson, 26 N.Y.3d at 77;
Stein, 144 A.D.3d at 1572).
conclude that the Village failed to "make a prima facie
showing that the defect is, under the circumstances,
physically insignificant and that the characteristics of the
defect or the surrounding circumstances do not increase the
risks it poses" (Hutchinson, 26 N.Y.3d at 79).
In support of its motion, the Village submitted the affidavit
of an employee who averred that he took photographs depicting
the defect in the sidewalk, and that the photographs
"most clearly show that the height of the alleged defect
is one-half inch or less." The Village, however, did not
offer a precise measurement and attached only black-and-white
photographs of the defect. Moreover, the Village submitted
excerpts of the deposition transcripts of two employees of
Jones Lang, who reviewed plaintiff's color photographs of
the defect and testified that such a defect "should be
repaired" because it "could be a tripping
hazard." We therefore ...