SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
304
CA 13-01082
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.
KIMBERLY OWENS, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
BARR MIESCH, ROCHESTER HOUSING AUTHORITY,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
WILLIAM MATTAR, P.C., WILLIAMSVILLE (ASHLEY FASSO OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
CRAMER, SMITH & MILLER, P.C., SYRACUSE (LAUREN M. MILLER OF COUNSEL),
FOR DEFENDANT-RESPONDENT BARR MIESCH.
ERNEST D. SANTORO, ESQ., P.C., ROCHESTER (RICHARD A. KAUL OF COUNSEL),
FOR DEFENDANT-RESPONDENT ROCHESTER HOUSING AUTHORITY.
Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered March 12, 2013. The order granted the motions of
defendants Barr Miesch and Rochester Housing Authority for summary
judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries she sustained when she slipped and fell on an icy
public sidewalk in front of her house, which is owned by Barr Miesch
(defendant). Supreme Court properly granted defendant’s motion
seeking summary judgment dismissing the complaint against him.
“Unless a statute or ordinance ‘clearly imposes liability upon’ an
abutting landowner, only a municipality may be held liable for the
negligent failure to remove snow and ice from a public sidewalk”
(Smalley v Bemben, 12 NY3d 751, 752, quoting Roark v Hunting, 24 NY2d
470, 475; see Schroeck v Gies, 110 AD3d 1497, 1497). Here, there is
no question that the Charter of the City of Rochester (Charter) and
the Municipal Code of the City of Rochester (Code) “do not clearly
subject landowners to such liability” (Smalley, 12 NY3d at 752; see
Charter § 7-10; Code § 104-11 [c]). The court therefore properly
granted defendant’s motion.
We reject plaintiff’s contention that defendant’s motion should
have been denied pursuant to CPLR 3212 (f) on the ground that it was
premature. We conclude that the facts she sought to obtain were not
-2- 304
CA 13-01082
in defendant’s exclusive knowledge and control and, in any event,
would not have provided a basis to impose liability on defendant (see
Cueva v 373 Wythe Realty, Inc., 111 AD3d 876, 877).
The court also properly granted the motion of defendant Rochester
Housing Authority (RHA) seeking summary judgment dismissing the
complaint against it. RHA established as a matter of law that its
duties with respect to defendant’s premises did not encompass
inspecting the sidewalk for snow and ice removal (see generally
Jablonski v Rapalje, 14 AD3d 484, 488), and plaintiff failed to raise
a triable issue of fact (see generally Zuckerman v City of New York,
49 NY2d 557, 562). Contrary to plaintiff’s contention, the court
properly took judicial notice of the applicable HUD regulations with
respect to RHA’s motion (see CPLR 4511 [b]).
Entered: June 13, 2014 Frances E. Cafarell
Clerk of the Court