Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
KIMBERLY OWENS, PLAINTIFF–APPELLANT, v. BARR MIESCH, ROCHESTER HOUSING AUTHORITY, DEFENDANTS–RESPONDENTS, ET AL., DEFENDANTS.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover damages for injuries she sustained when she slipped and fell on an icy public sidewalk in front of her house, which is owned by Barr Miesch (defendant). Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint against him. “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” (Smalley v. Bemben, 12 NY3d 751, 752, quoting Roark v. Hunting, 24 N.Y.2d 470, 475; see Schroeck v. Gies, 110 AD3d 1497, 1497). Here, there is no question that the Charter of the City of Rochester (Charter) and the Municipal Code of the City of Rochester (Code) “do not clearly subject landowners to such liability” (Smalley, 12 NY3d at 752; see Charter § 7–10; Code § 104–11 [c] ). The court therefore properly granted defendant's motion.
We reject plaintiff's contention that defendant's motion should have been denied pursuant to CPLR 3212(f) on the ground that it was premature. We conclude that the facts she sought to obtain were not in defendant's exclusive knowledge and control and, in any event, would not have provided a basis to impose liability on defendant (see Cueva v. 373 Wythe Realty, Inc., 111 AD3d 876, 877).
The court also properly granted the motion of defendant Rochester Housing Authority (RHA) seeking summary judgment dismissing the complaint against it. RHA established as a matter of law that its duties with respect to defendant's premises did not encompass inspecting the sidewalk for snow and ice removal (see generally Jablonski v. Rapalje, 14 AD3d 484, 488), and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Contrary to plaintiff's contention, the court properly took judicial notice of the applicable HUD regulations with respect to RHA's motion (see CPLR 4511[b] ).
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: CA 13–01082
Decided: June 13, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)