               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

62
CA 11-01531
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.


ERIN C. DAVISON, PLAINTIFF-RESPONDENT-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-RESPONDENT-APPELLANT,
AND JOHN CARNEY, DEFENDANT-APPELLANT-RESPONDENT.


BURGIO, KITA & CURVIN, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

HARRIS BEACH PLLC, BUFFALO (BRIAN C. MAHONEY OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-RESPONDENT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Frank A. Sedita, Jr., J.), entered April 27, 2011 in a
personal injury action. The order, among other things, denied
defendant John Carney’s motion for summary judgment dismissing the
complaint against him, denied defendant City of Buffalo’s motion for
summary judgment dismissing the complaint and the cross claims against
it, and granted defendant City of Buffalo and plaintiff summary
judgment against defendant John Carney on the issues of negligence and
proximate cause.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting the motion of defendant City of Buffalo and
dismissing the complaint and all cross claims against it and by
vacating both that part of the order granting summary judgment to
plaintiff and defendant City of Buffalo against defendant John Carney
on the issues of negligence and proximate cause as well as the final
ordering paragraph and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she fell on an uneven sidewalk
in front of the residence of John Carney (defendant). Contrary to
defendant’s contention, we conclude that Supreme Court properly denied
his motion for summary judgment dismissing the complaint against him.

     “Generally, liability for injuries sustained as a result of
negligent maintenance of or the existence of dangerous and defective
conditions to public sidewalks is placed on the municipality and not
the abutting landowner” (Hausser v Giunta, 88 NY2d 449, 452-453).
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                                                         CA 11-01531

That general rule is inapplicable, however, “where[, inter alia,] a
local ordinance or statute specifically charges an abutting landowner
with a duty to maintain and repair the sidewalks and imposes liability
for injuries resulting from the breach of that duty” (id. at 453; see
Guadagno v City of Niagara Falls, 38 AD3d 1310, 1311). Here, the
version of section 413-50 (A) of the Code of defendant City of Buffalo
(Code) applicable to this case provided that the owner of lands
fronting or abutting on any street shall “make, maintain and repair
the sidewalk adjoining his [or her] lands,” and that such owner “shall
be liable for any injury . . . by reason of omission, failure or
negligence to make, maintain or repair such sidewalk” (former Code §
413-50 [A]). We conclude that the plain language of former section
413-50 (A) of the Code imposes liability upon defendant for
plaintiff’s injuries (see Smalley v Bemben, 12 NY3d 751, 752, affg 50
AD3d 1470). To the extent that our holding is inconsistent with our
prior holding in Montes v City of Buffalo (295 AD2d 896, 897, lv
denied 99 NY2d 504), that case is no longer to be followed in light of
the decision of the Court of Appeals in Smalley. Although, as noted
by the Court of Appeals in Smalley, the legislative history of the
1997 amendment to section 413-50 (A) “may also be read as indicating
that the amendment was intended to impose liability on landowners for
failing to remove snow and ice from city sidewalks abutting their
property” (Smalley, 12 NY3d at 752, citing Montes, 295 AD2d at 897),
that section nevertheless unambiguously “only imposes liability” on
abutting landowners for negligently maintaining or failing to repair
sidewalks (id.; see Montes, 295 AD2d at 898 [Lawton, J., dissenting in
part]). “[A] court’s role is not to correct erroneous legislation”
(Montes, 295 AD2d at 898 [Lawton, J., dissenting]). We agree with
defendant, however, that the court erred in sua sponte granting
summary judgment to plaintiff and defendant City of Buffalo (City) on
the issues of negligence and proximate cause inasmuch as there are
issues of fact whether defendant was negligent in maintaining the
sidewalk and whether such negligence was a proximate cause of
plaintiff’s injuries (see generally Atkins v United Ref. Holdings,
Inc., 71 AD3d 1459, 1460). We therefore modify the order accordingly.

     We further agree with the City that the court erred in denying
its motion for summary judgment dismissing the complaint and all cross
claims against it. The City met its initial burden by establishing
that it did not receive the requisite written notice of the allegedly
defective sidewalk condition as required by section 21-2 of the City
Charter (see Robinson v City of Buffalo, 303 AD2d 1048, 1048-1049),
and plaintiff failed to raise “a triable issue of fact concerning the
applicability of [an] exception to the prior written notice
requirement, i.e., whether the City created the allegedly dangerous
condition ‘through an affirmative act of negligence’ ” (Smith v City
of Syracuse, 298 AD2d 842, 842-843, quoting Amabile v City of Buffalo,
93 NY2d 471, 474). Although the City may have been negligent in
failing to replace the temporary cold patch with a permanent repair,
the resulting allegedly dangerous condition developed over nearly 10
years and did not “immediately result” from the City’s work, and thus
the affirmative act of negligence exception would not apply in any
event (Yarborough v City of New York, 10 NY3d 726, 728; see Horan v
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                                                         CA 11-01531

Town of Tonawanda, 83 AD3d 1565, 1567; Gold v County of Westchester,
15 AD3d 439, 440). We therefore further modify the order accordingly.

     All concur except GORSKI, J., who is not participating.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
