Appellate Division Denies Adjoining Landowner's Motion for Summary Judgment in the Case of Police Officer Injured on a Public Sidewalk

Typically, it is the municipality that faces liability when a pedestrian is injured as the result of a negligently maintained or otherwise dangerous or defective sidewalk. See Hausser v. Giunta, 88 N.Y.2d 449, 452-453 (1996). For an adjoining landowner to be liable, it must be shown that the he either created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute requiring them to maintain the sidewalk. See id.

However, as demonstrated in the Second Department's October 12, 2016 decision in Lewis v. Palazzolo, the question of liability is more complicated where the injured party is a law enforcement officer making a claim under Section 205-e of New York's General Municipal Law. Lewis v. Palazzolo __ A.D.3d __ (2d Dep't 2016). Section 205-e provides police officers, who are injured in the line of duty as a result of a defendant's negligence in failing to comply with the requirements of a statute or regulation, a potential, recoverable cause of action.

In Lewis, the plaintiff, a Sergeant with the Nassau County Police Department, claimed she tripped and fell on the sidewalk in front of the defendant's residence while responding to a 911 call. She then sued the defendant under both common law negligence and General Municipal Law § 205-e. The Second Department dismissed plaintiff's negligence cause of action. It found that the defendant had established that he neither created the allegedly dangerous condition, nor did he make special use of the area of the sidewalk where plaintiff fell. Moreover, while village and town codes required landowners to maintain the sidewalk adjoining their property in good and safe repair, they did not provide a private right of action to pedestrians who were injured due to noncompliance.

However, the Second Department held that summary judgment was properly denied as to plaintiff's claim under General Municipal Law § 205-e. In order to make out a claim under Section 205-e, a plaintiff must show a connection between his or her injury, and the defendant's negligent failure to comply with a requirement found in a well-developed body of law and regulation (imposing clear legal duties). The plaintiff in Lewis predicated her Section 205-e claim on, among other things, the same village and town codes which the Appellate Division held were insufficient to support a negligence claim. It is here that the analysis diverges. While a code provision requiring a landowner to maintain an adjoining sidewalk must provide a private right of action to an injured pedestrian in order to shift the burden from a municipality at common law, it may form the basis of a Section 205-e claim so long as it imposes a sufficiently clear legal duty.

Lewis illustrates that the General Municipal Law§ 205-e provides a far broader remedy for an injured law enforcement officer than would otherwise be available to a member of the general public.