ROSER v. CITY OF KINGSTON

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

Edward ROSER, Respondent, v. CITY OF KINGSTON, Appellant.

Decided: June 25, 1998

Before CARDONA, P.J., and MERCURE, CREW, YESAWICH and PETERS, JJ. Cook, Tucker, Netter & Cloonan (Robert D. Cook, of counsel), Kingston, for appellant. Philip W. Kirschner, Kingston, for respondent.

Appeal from an order of the Supreme Court (Torraca, J.), entered May 9, 1997 in Ulster County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover for injuries sustained when he slipped and fell on an icy sidewalk while attempting to place money in a parking meter maintained by defendant.   Essentially conceding his inability to establish prior written notice of the purportedly dangerous condition, as required by Kingston City Charter § C-118, plaintiff opposed defendant's summary judgment motion with the assertions that no such notice was required because defendant was acting in a proprietary capacity in maintaining its parking meters or, alternatively, because of defendant's violation of Kingston City Code § 103-9, which requires abutting landowners to remove snow and ice from sidewalks.   We conclude that plaintiff's assertions lack merit and that Supreme Court should have granted summary judgment in favor of defendant.

 First, it is settled law that a city's parking regulations, including those relating to the installation, operation and maintenance of parking meters on public streets, constitute a proper exercise of its police powers (see, Vehicle and Traffic Law § 1640[a][6], [9];  General City Law § 20[32] [c];  see generally, People v. Randazzo, 60 N.Y.2d 952, 471 N.Y.S.2d 52, 459 N.E.2d 161;  People v. Grant, 306 N.Y. 258, 260, 117 N.E.2d 542), leading ineluctably to the conclusion that defendant was acting in a governmental and not a proprietary capacity in maintaining the parking meters (see, Marona v. Incorporated Vil. of Mamaroneck, 203 A.D.2d 337, 338, 609 N.Y.S.2d 938;  compare, Knapp v. Fasbender, 1 N.Y.2d 212, 226, 151 N.Y.S.2d 668, 134 N.E.2d 482).

 Second, in the absence of prior written notice or a showing that defendant affirmatively caused or created the dangerous condition, its failure to timely remove accumulations of ice or snow is not actionable (see, Bornt v. Town of Pittstown, 248 A.D.2d 854, 669 N.Y.S.2d 979;  Lang v. County of Sullivan, 184 A.D.2d 981, 585 N.Y.S.2d 609).   Finally, we agree with defendant that, in the absence of any express provision therefor, a violation of Kingston City Code § 103-9 imposes no tort liability (see, Montalvo v. Western Estates, 240 A.D.2d 45, 669 N.Y.S.2d 562;  Appio v. City of Albany, 144 A.D.2d 869, 870, 534 N.Y.S.2d 811;  Kiernan v. Thompson, 137 A.D.2d 957, 958, 525 N.Y.S.2d 380;  see also, Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470).

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.

MERCURE, Justice.

CARDONA, P.J., and CREW, YESAWICH and PETERS, JJ., concur.

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