THOMAS WHELAN AND JENNIFER WHELAN PLAINTIFFS RESPONDENTS v. BUFFALO MUNICIPAL HOUSING AUTHORITY DEFENDANT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously reversed on the law without costs, defendant's motion is granted, and the complaint is dismissed.

Memorandum: Thomas R. Whelan (plaintiff), a lieutenant with the Buffalo Police Department (BPD), commenced this action seeking to recover damages for injuries he sustained when he slipped and fell due to an icy condition present on a set of metal stairs located at the rear of a building owned by defendant, Buffalo Municipal Housing Authority, that is part of a public housing development. The BPD operated an office in part of defendant's building. At the time of his fall, plaintiff was leaving the BPD's office in the building to go out on patrol, using the rear stairs to get to his motor vehicle parked outside. Plaintiffs alleged, among other things, that defendant was negligent by violating its duty of reasonable care to properly and safely maintain the metal stairs where plaintiff slipped and fell due to its alleged failure to remedy the icy condition on the stairs. Previously, plaintiffs moved for partial summary judgment with respect to liability, arguing that they were entitled to recover under General Municipal Law § 205-e inasmuch as defendant failed to comply with section 302.3 of the 2015 Property Maintenance Code of New York State, which provided, in pertinent part, that “[s]idewalks, walkways, [and] stairs ․ shall be kept in a proper state of repair, and maintained free from hazardous conditions.” Supreme Court (Walker, A.J.), denied plaintiffs’ motion, and this Court affirmed without a writing (Whelan v Buffalo Mun. Hous. Auth., 219 AD3d 1701 [4th Dept 2023]).

Thereafter, following this case's reassignment to a different Justice (Pace, J.), defendant moved for summary judgment dismissing the complaint, arguing, among other things, that it lacked actual and constructive notice of the condition that caused plaintiff's slip and fall. In appeal No. 1, defendant appeals from an amended order that denied its motion. The matter proceeded to a nonjury trial on the issue of liability and, in appeal No. 2, defendant appeals from an order that, following the trial, determined that defendant was liable to plaintiffs under General Municipal Law § 205-e.

With respect to appeal No. 1, defendant contends that the court erred in denying its motion inasmuch as it established that it did not have notice of the alleged icy condition that caused plaintiff's injury, and plaintiffs failed to raise a triable issue of fact in opposition. We agree, and therefore reverse, grant defendant's motion, and dismiss the complaint.

General Municipal Law § 205-e provides police officers with a cause of action to recover when they are injured as the result of “any neglect, omission, [or] willful or culpable negligence of” (§ 205-e [1]) another party in “fail[ing] to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus” (Williams v City of New York, 2 NY3d 352, 364 [2004] [internal quotation marks and emphasis omitted]; see General Municipal Law § 205-e [1]). A plaintiff asserting a cause of action under section 205-e must demonstrate that the sustained injuries were the result of “negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Williams, 2 NY3d at 364 [internal quotation marks omitted]; see Galapo v City of New York, 95 NY2d 568, 574 [2000]; Desmond v City of New York, 88 NY2d 455, 463-464 [1996], rearg denied 89 NY2d 861 [1996]).

In other words, “[t]o make out a [cause of action] under section 205-e, a plaintiff must ‘[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm’ ” (Williams, 2 NY3d at 363, quoting Giuffrida v Citibank Corp., 100 NY2d 72, 79 [2003]). Here, as noted above, plaintiffs rely on the alleged violation of 2015 Property Maintenance Code of New York State § 302.3 as the ordinance with which defendant failed to comply. In enacting General Municipal Law § 205-e, the legislature was “ameliorat[ing] the effect of the common-law rule that disadvantaged police officers who, unlike members of the general public, were barred from recovery for injuries resulting from risks inherent in their job” (Galapo, 95 NY2d at 575). Still, as the Court of Appeals has made clear, the legislature, in enacting section 205-e, did not “intend[ ] to give police officers greater rights and remedies than those available to the general public” (id. [emphasis added]; see Brinkerhoff v County of St. Lawrence, 70 AD3d 1272, 1274 [3d Dept 2010]; Montalvo v City of New York, 46 AD3d 772, 773 [2d Dept 2007], lv denied 10 NY3d 707 [2008]).

The central dispute in appeal No. 1 concerns whether notice of a dangerous condition—here, the ice that formed on the building's stairs—is necessary under General Municipal Law § 205-e to hold defendant liable for the injuries plaintiff sustained. For one thing, and contrary to the insistence of plaintiffs’ counsel at oral argument, it is well established that, even under General Municipal Law § 205-e, a defendant is, in fact, entitled to notice of the dangerous condition at issue before liability may attach. Indeed, courts have made plain that “[n]otice is clearly material to recovery under the statute” (Lusenskas v Axelrod, 183 AD2d 244, 248 [1st Dept 1992], appeal dismissed 81 NY2d 300 [1993]; see e.g. Monaco v Russillo, 200 AD3d 1035, 1036 [2d Dept 2021]; Herbert v Carter, 283 AD2d 971, 971 [4th Dept 2001]). To the extent that General Municipal Law § 205-e, and its counterpart concerning firefighters, section 205-a, have been held to “impose[ ] a strict liability standard” (Lusenskas, 183 AD2d at 247), we note that such references do not mean that the statutes impose absolute liability—i.e., liability without fault (see generally Black's Law Dictionary 1095 [12th ed 2024]). Rather, those references establish only that comparative fault and assumption of risk are not applicable to causes of action asserted under General Municipal Law §§ 205-a and 205-e (see Giuffrida, 100 NY2d at 83; Mullen v Zoebe, Inc., 86 NY2d 135, 142-145 [1995]; Johnson v Riggio Realty Corp., 153 AD2d 485, 488 [1st Dept 1989], lv dismissed 74 NY2d 945 [1989]).

Furthermore, in the context of premises liability, notice is central to establishing the requisite breach of duty integral to a negligence cause of action inasmuch as, without notice, liability would be imposed without fault (see Walsh v Super Value, Inc., 76 AD3d 371, 372, 376 [2d Dept 2010]). Of course, there is nothing in the language of General Municipal Law § 205-e that imposes liability without fault. To the contrary, the statute provides recovery for injuries that are the result of “any neglect, omission, [or] willful or culpable negligence” (§ 205-e [1])—language that clearly places the duty owed within the negligence context. Moreover, neither the legislature nor the Court of Appeals has endorsed a reading of that statute that mandates the imposition of liability without fault. Indeed, accepting plaintiffs’ contention that notice is not required would unjustifiably expand the duty owed by premises owners to one discrete class of putative plaintiffs beyond any reasonable interpretation contemplated by the language of the statute, existing precedent or established policy. We decline to impose liability without fault upon those legally responsible for premises conditions when police officers are present, especially when the statute was not designed to provide them with greater protections than ordinary citizens. Alternatively stated, the duty owed by landowners to police officers under the statute is not broader than it is for any other class of individuals (see generally Galapo, 95 NY2d at 575; Brinkerhoff, 70 AD3d at 1274; Montalvo, 46 AD3d at 773).

Plaintiffs’ fallback position on the issue of notice (and the one predominantly advanced in their brief) is that the level of notice required to support a finding of liability under General Municipal Law § 205-e is something less than the familiar common-law standard, i.e., actual or constructive notice of the accident-causing defect. In connection with that argument, plaintiffs do not contend that defendant created the condition (i.e., imputed notice) or had actual notice of the icy condition, and they have failed to articulate any formulation of a constructive notice standard to be applied. Although there is some case law—mostly from other departments—that supports applying a lesser notice standard in cases like this one (see Lusenskas, 183 AD2d at 248; see also Monaco, 200 AD3d at 1036; Alexander v City of New York, 82 AD3d 1022, 1024 [2d Dept 2011], lv denied 17 NY3d 716 [2011]), this Court has evaluated questions of notice under General Municipal Law § 205-e by considering whether a defendant met its “initial burden of establishing as a matter of law that they had no actual or constructive notice of alleged code violations” that served as the predicate for liability under section 205-e (Herbert, 283 AD2d at 971; see also Johnson v Wythe Place, LLC, 134 AD3d 569, 569 [1st Dept 2015]; Fernandez v City of New York, 84 AD3d 595, 596 [1st Dept 2011]). We see no need to depart from that articulation of the rule in this case.

Indeed, we note that applying the amorphous lesser notice standard advanced by plaintiffs would frustrate the legislature's purpose in enacting General Municipal Law § 205-e, which, as the Court of Appeals has explained, was merely to abrogate the common-law rule precluding police officers, inter alia, from recovering for injuries caused by risks inherent on the job; the legislature did not “intend[ ] to give police officers greater rights and remedies than those available to the general public” (Galapo, 95 NY2d at 575 [emphasis added]; see Brinkerhoff, 70 AD3d at 1274; Montalvo, 46 AD3d at 773). Plaintiffs’ preferred approach, however, would do exactly that. Hypothetically, if we were to adopt the rule endorsed by plaintiffs, a member of the general public (e.g., one of defendant's public housing tenants) who was injured by the very same icy condition at issue in this case would, under the notice standard applicable to common-law negligence causes of action, have to do more to establish notice than the police officer plaintiff in this case. That cannot be so, particularly because that rule would effectively require premises owners who allow police officers on their premises to “patrol ․ staircases 24 hours a day” (Love v New York City Hous. Auth., 82 AD3d 588, 588 [1st Dept 2011]; see Pfeuffer v New York City Hous. Auth., 93 AD3d 470, 472 [1st Dept 2012]) or to continuously inspect and salt any stairs or walkways on the premises (see Berger v ISK Manhattan, Inc., 10 AD3d 510, 512-513 [1st Dept 2004]; Garcia v Delgado Travel Agency, 4 AD3d 204, 204 [1st Dept 2004]). For the same reason, we cannot read 2015 Property Maintenance Code of New York State § 302.3 as requiring incessant inspections or continuous repair and maintenance by premises owners.

Indeed, applying anything less than the standard of notice we applied in Herbert (283 AD2d at 971) is particularly fraught in cases like this one, which involve transient hazardous conditions like snow or ice. Of course, it is well settled that a mere “ ‘[g]eneral awareness that snow or ice may be present is legally insufficient to constitute notice of the particular condition that cause[s]’ a plaintiff to fall” (Krieger v McDonald’s Rest. of N.Y., Inc., 79 AD3d 1827, 1829 [4th Dept 2010], lv dismissed 17 NY3d 734 [2011]; see McAleer v Quill, 98 AD3d 1306, 1307 [4th Dept 2012]; see generally Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). Indeed, because such conditions are highly transitory, it is more difficult to establish notice of such a dangerous condition, particularly when such a condition forms shortly before an accident (see Betances v 185-189 Audubon Realty, LLC, 139 AD3d 404, 405 [1st Dept 2016]; Hoffman v New York City Hous. Auth., 187 AD2d 334, 337 [1st Dept 1992]; see generally Matter of Shumway v Town of Hempstead, 187 AD3d 758, 759 [2d Dept 2020]). Furthermore, in cases involving a dangerous icy condition, courts have held that “[a]ctual or constructive notice is not established merely by [an] assertion that [a person] observed isolated patches of ice around the property ․ [,] nor is it established by the evidence of a snowfall” at some earlier time (Lenti v Initial Cleaning Servs., Inc., 52 AD3d 288, 289 [1st Dept 2008]). Rather, to establish notice it must be shown or made “reasonably infer[able]” that the icy condition “in question was present for a considerable period of time prior to the accident ․ such as would justify imposing on the responsible party the obligation to remedy it” (id. [internal quotation marks omitted]). Thus, with respect to whether, under General Municipal Law § 205-e, a defendant acted with “culpable negligence” (emphasis added), we conclude that the quantum of notice required to hold a defendant liable is whether there was sufficient time after the formation of a hazardous condition to afford a defendant sufficient opportunity to cure or remedy the condition (see generally Herbert, 283 AD2d at 971).

Applying that notice standard here, we conclude that the court erred in denying defendant's motion for summary judgment dismissing the complaint. Here, defendant met its initial burden of establishing that it lacked the requisite notice of the specific icy condition that caused plaintiff's injuries on the day in question (see McCullagh v McJunkin, 240 AD2d 713, 713-714 [2d Dept 1997]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Plaintiff's own deposition testimony established that when he arrived at defendant's building for work—roughly 90 minutes before the accident—he did not notice any icy condition on the stairs (they were merely wet), and that he was able to ascend the stairs safely without any issue. Plaintiff first observed ice on the stairs at the time of the accident. Under the circumstances, the development of an icy condition 90 minutes before an accident is not enough to establish that defendant had constructive notice of the condition (see Bombino-Munroe v Church of St. Bernard, 163 AD3d 616, 617 [2d Dept 2018]; see generally Lenti, 52 AD3d at 289). Additionally, defendant submitted testimony from one of its employees, who indicated that defendant never received any work orders prior to the accident requesting snow or ice removal at the building. Defendant also established that it was unaware of any prior incidents where a person had slipped on ice that had formed on the stairs.

Although defendant submitted meteorological evidence that temperatures fell below freezing at around 3:50 a.m. on the morning of the accident, we conclude that such evidence, standing alone, does not establish notice of a subsequently forming dangerous icy condition and, therefore, does not preclude a determination that defendant satisfied its initial burden on its motion. Indeed, such evidence does not, standing alone, establish that there was sufficient time for defendant to ameliorate an allegedly dangerous condition. The rule seemingly advocated by plaintiffs, i.e., to necessitate action by premises owners whenever temperatures dip below freezing, is not only untenable—especially in colder climates such as in Western New York—it is essentially equivalent to imposing liability without fault. Furthermore, to the extent there was testimony from other individuals who worked on the premises suggesting that requests had been made to defendant about supplying additional ice melt to maintain the stairs, that evidence does not establish notice; rather, it merely suggests that defendant had a general awareness of weather conditions that could cause injuries to people at the building, which is insufficient to establish notice in cases such as this one (see McAleer, 98 AD3d at 1307; Krieger, 79 AD3d at 1829).

We further conclude that, in opposition to defendant's motion, plaintiffs failed to raise a triable issue of material fact with respect to the issue of notice; indeed, plaintiffs’ opposition to the motion did not address the issue of notice at all (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Plaintiffs also have not contended that the icy condition at issue here was sufficiently recurrent, or was of such a longstanding nature that defendant should have been aware of the need to more promptly remedy it (see generally O’Grady v New York City Hous. Auth., 259 AD2d 442, 442-443 [1st Dept 1999]; Lusenskas, 183 AD2d at 248-249; Lyden v Rasa, 39 AD2d 716, 717 [2d Dept 1972]).

In light of our conclusion, defendant's remaining contentions in appeal No. 1 are academic. Similarly, given our determination in appeal No. 1 to reverse, grant defendant's motion, and dismiss the complaint, we dismiss appeal No. 2 as academic (see generally Matter of Schildt v Campanella, 238 AD3d 1543, 1545 [4th Dept 2025]; Fornino v New York Cent. Mut. Fire Ins. Co. [appeal No. 2], 218 AD3d 1192, 1195 [4th Dept 2023], lv denied 41 NY3d 902 [2024]; Mangovski v DiMarco, 175 AD3d 947, 950 [4th Dept 2019]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court