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Roser v. City of Kingston

Appellate Division of the Supreme Court of New York, Third Department
Jun 25, 1998
251 A.D.2d 936 (N.Y. App. Div. 1998)

Opinion

June 25, 1998

Appeal from the Supreme Court (Torraca, J.).


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 Veh. Traf. [a] [6], [9]; General City Law § 20 Gen. City [32] [c]; see generally, People v. Randazzo, 60 N.Y.2d 952; People v. Grant, 306 N.Y. 258, 260), 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; compare, Knapp v. Fasbender, 1 N.Y.2d 212, 226).

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; Lang v. County of Sullivan, 184 A.D.2d 981). 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; Appio v. City of Albany, 144 A.D.2d 869, 870; Kiernan v. Thompson, 137 A.D.2d 957, 958; see also, Hausser v. Giunta, 88 N.Y.2d 449).

Cardona, P. J., Crew III, Yesawich Jr. and Peters, JJ., concur.

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


Summaries of

Roser v. City of Kingston

Appellate Division of the Supreme Court of New York, Third Department
Jun 25, 1998
251 A.D.2d 936 (N.Y. App. Div. 1998)
Case details for

Roser v. City of Kingston

Case Details

Full title:EDWARD ROSER, Respondent, v. CITY OF KINGSTON, Appellant

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 25, 1998

Citations

251 A.D.2d 936 (N.Y. App. Div. 1998)
674 N.Y.S.2d 877

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