Summary
holding that hospital was not liable for plaintiff's injuries, which were caused when she was struck by a car as she walked in the street to avoid a snow-covered sidewalk abutting a hospital because "[a]s a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk"
Summary of this case from Raimond v. U.S.Opinion
March 21, 2001.
Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P. J., GREEN, HAYES, BURNS AND LAWTON, JJ.
Order unanimously reversed on the law without costs, motion granted and third-party complaint dismissed.
Memorandum:
Plaintiff commenced this action seeking damages for injuries that she sustained when she was struck by a vehicle driven by defendant Joseph Washington. Washington's vehicle had collided with a vehicle driven by defendant Joseph M. Pasquale. Plaintiff had been walking in the street because the sidewalk was snow-covered. Pasquale commenced a third-party action against third-party defendant, Sheehan Memorial Hospital (Hospital), the owner of the property abutting the sidewalk. The third-party action sought indemnification and/or contribution from the Hospital, alleging that the injury to plaintiff resulted from the Hospital's culpable conduct. Supreme Court erred in denying the Hospital's motion for summary judgment dismissing the third-party complaint. "`As a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk * * *, unless a charter, statute or an ordinance clearly imposes liability upon the owner in favor the injured pedestrian'" ( Roark v. Hunting, 24 N.Y.2d 470, 475). Although Buffalo City Code § 413-50 (A) requires "every owner or occupant of any premises abutting any public street to remove, before 9:00 A.M., all snow and ice which may have fallen upon the sidewalk abutting said premises", that section does not impose liability on the owner in favor of an injured pedestrian ( see, Sacco v. City of Buffalo, 78 A.D.2d 1000). Although the Hospital may be liable if it created the dangerous condition by its snow removal efforts ( see, Jimenez v. Cummings, 226 A.D.2d 112; Stewart v. Haleviym, 186 A.D.2d 731, 731-732), here, the Hospital met its burden of establishing that it did not create a dangerous condition, and Pasquale failed to raise a triable issue of fact.