PICONE v. SCHLAICH

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

Matilda PICONE, et al., Respondents, v. Elsie Doris SCHLAICH, et al., Appellants.

Decided: December 29, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN, KRAUSMAN and LERNER, JJ. Lewis, Johs, Avallone, Aviles & Kaufman, Melville (John M. Denby, of counsel), for appellants. Joachim, Flanzig, Frommer, Beasley & Madigan, Mineola (Stephen G. Frommer, of counsel), for respondents.

In an action, inter alia, to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (McCarthy, J.), dated February 25, 1997, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion is granted, and the complaint is dismissed.

 The plaintiff Matilda Picone was injured when she tripped and fell on an allegedly defective section of sidewalk in front of premises owned by the defendants.   The defect was purportedly caused by the defendants' planting of a tree approximately 15 years earlier.   An owner of land abutting a public sidewalk does not, solely by reason of being an abutting owner, owe a duty to keep the sidewalk in a safe condition (see, Loforese v. Cadillac Fairview Shopping Ctrs., U.S., 235 A.D.2d 399, 652 N.Y.S.2d 84), and the mere planting of a curbside tree does not in itself constitute an act of affirmative negligence (see, Zawacki v. Town of N. Hempstead, 184 A.D.2d 697, 585 N.Y.S.2d 93;  see also, Claudio v. Incorporated Vil. of Patchogue, 235 A.D.2d 385, 652 N.Y.S.2d 76).  Furthermore, we reject the plaintiffs' contention that the defendants could be held liable for planting a certain type of tree in violation of Town of Hempstead Code § 181-4.   In order for a statute, ordinance, or municipal charter to impose liability upon an abutting owner for injuries caused by its negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he or she will be liable to those who are injured (see, Scalici v. City of New York, 215 A.D.2d 744, 627 N.Y.S.2d 730).   No such language is contained in the subject ordinance, and thus the defendants were entitled to summary judgment.

MEMORANDUM BY THE COURT.

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