RADER v. WALTON

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

Freda RADER, Plaintiff-Respondent, v. Jim WALTON and Downtown Building Group, Inc., Defendants-Appellants.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, MARTOCHE, AND HAYES, JJ. Walsh & Wilkins, Buffalo (Nicole A. Heary of Counsel), for Defendants-Appellants. Brian Chapin York, Jamestown, for Plaintiff-Respondent.

 Plaintiff commenced this action seeking damages for injuries he sustained when he slipped on ice in front of a building owned by defendant Downtown Building Group, Inc. (Downtown Building Group).   Defendant Jim Walton was the president of Downtown Building Group.   We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the amended complaint.  “To hold an abutting landowner liable to a pedestrian injured by a defect in a public sidewalk, the landowner must have either created the defect, caused it to occur by a special use, or breached a specific ordinance or statute which obligates the [land]owner to maintain the sidewalk” (Jeanty v. Benin, 1 A.D.3d 566, 567, 767 N.Y.S.2d 447;  see Bloch v. Potter, 204 A.D.2d 672, 612 N.Y.S.2d 236).   Here, plaintiff contends that defendants created the allegedly defective condition because water running off the building froze on the sidewalk.   An abutting landowner is liable, however, only if, “by artificial means, snow and ice are transferred from the abutting premises to the sidewalk;  or if, by such artificial means, water from the property is permitted to flow onto the public sidewalk where it freezes” (Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896).   Here, defendants established that the water did not flow onto the sidewalk by artificial means, and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The further contention of plaintiff that defendants are liable because they breached a provision of the Code of the City of Jamestown (Code) obligating them to maintain the sidewalk also is lacking in merit.   Section 252-14(B) of the Code, the provision on which plaintiff relies for the proposition that defendants were required to remove snow and ice from the abutting sidewalk, does not contain the requisite additional language “that if the landowner breaches such duty he will be liable to those who are injured for any defects in the sidewalk” (Kiernan v. Thompson, 137 A.D.2d 957, 958, 525 N.Y.S.2d 380).

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

MEMORANDUM: