[669 NE2d 470, 646 NYS2d 490]

#### Mary Hausser et al., Appellants, v Salvatore Giunta, Respondent.

Argued March 27, 1996;

decided May 2, 1996

*450POINTS OF COUNSEL

*Jerome Turner,*Long Beach, for appellants.

I. The abutting landowner was in violation of section 256 of the Code of City of Long Beach and is liable for negligence in allowing and permitting a defective, hazardous condition to exist on the sidewalk abutting his property of which he had notice and which he did not cure and which was the precipitating cause of the accident in question and the injuries sustained by plaintiff. *(Willis v Parker,*225 NY 159; *Hohnke v I-H Sing Lee,*159 AD2d 487; *Sheenan v Rubenstein,*154 AD2d 663; *Surowiec v City of New York,*139 AD2d 727; *Kiernan v Thompson,*137 AD2d 957; *Beltzer v City of Long Beach,*24 Misc 2d 279, 15 AD2d 789; *Karom v Altarac,*3 AD2d 925.) II. The case of *Rooney v City of Long Beach*(42 AD2d 34) should be reversed and section 256 of the Long Beach City Code is a valid legislative act not in violation of the Municipal Home Rule Law § 11 (1) (j). *(Patrolmen’s Benevolent Assn. v City of New York,*41 NY2d 205; *Doctors Council v New York City Employees’ Retirement Sys.,*71 NY2d 669; *Matter of Tucker v Board of Educ.,*82 NY2d 274; *Dougal v County of Suffolk,*102 AD2d 531; *Robin v Incorporated Vil. of Hempstead,*30 NY2d 347; *Willis v Parker,*225 NY 159.)

*Devitt, Spellman Barrett, Callahan, Leyden & Kenney, LLP,*Smithtown *(L. Kevin Sheridan*of counsel), for respondent.

The *Rooney*case was correctly decided and, in any event, that judicial construction of former City Home Rule Law § 11, as amended by chapter 1080 of Laws of 1960, and of Municipal Home Rule Law § 11 (1) (j) should be adhered to in this case. *(Rooney v City of Long Beach,*42 AD2d 34; *Karom v Altarac,*3 AD2d 925; *Matter of Branford House v Michetti,*81 NY2d 681; *People ex rel. French v Lyke,*159 NY 149; *Blanchko v Wurster,*156 NY 437; *Chittenden Lbr. Co. v Silberblatt & Lasker,*288 NY 396; *People v Ryan,*274 NY 149; *City Bank Farmers’ Trust Co. v New York Cent. R. R. Co.,*253 NY 49; *Matter of Eckart,*39 NY2d 493; *People v Hobson,*39 NY2d 479.)

OPINION OF THE COURT

Smith, J.

The issue presented by this personal injury action is whether Municipál Home Rule Law § 11 (1) (j) renders invalid section 256 of the City of Long Beach Code, which makes a landowner with property abutting city sidewalks liable for injuries caused by defects in the sidewalk. We conclude that Long Beach Code *451§ 256 is not invalidated by the Municipal Home Rule Law and reverse the order of the Appellate Division.

Appellants Mary and Henry Hausser live next door to respondent Salvatore Giunta in the City of Long Beach. Portions of a city sidewalk abut the property in front of both houses. In 1989, appellants commenced this action for personal injury against respondents Salvatore and Theresa1 Giunta seeking to recover for injuries appellant Mary Hausser sustained after she tripped over a broken, cracked or depressed portion of the sidewalk abutting the front of respondent’s property.2 Appellant sustained serious injuries to her knee which required surgery. By notice of motion dated February 1, 1993, respondent moved for summary judgment, arguing that under *Rooney v City of Long Beach*(42 AD2d 34), section 11 (1) (j) of the Municipal Home Rule Law invalidated section 256 of the City Code. By notice of motion dated March 31, 1993, appellants opposed respondent’s motion, and cross-moved for summary judgment.3

Supreme Court granted respondent’s motion for summary judgment and dismissed the complaint, finding that respondent neither created the defect nor caused the defective condition due to special use, and respondent was not clothed with liability by a statute or ordinance. The court concluded that the facts of this case were controlled by *Rooney v City of Long Beach*(42 AD2d 34, *appeal dismissed*33 NY2d 897, *supra).*The Appellate Division affirmed, finding that the City of Long Beach Code § 256 was invalidated by the 1960 amendment to City Home Rule Law § 11 (1) (now Municipal Home Rule Law § 11 [1] [j]).

Under the powers granted within section 11 (1) of the former City Home Rule Law (which granted power to local governments to adopt local laws and charters), the City of Long Beach, in 1931, adopted section 256 of the City of Long Beach Charter, transferring liability from the municipality to abutting land*452owners and clothing landowners with liability for injuries caused by defective sidewalks. It provides:

> "The owner or occupant of lands fronting or abutting on any street, highway, traveled road, public lane, alley or square, shall make, maintain and repair the sidewalk adjoining his lands and shall keep such sidewalk and the gutter free and clear of and from snow, ice and all other obstructions. Such owner or occupant and each of them, shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk.”

Section 11 (1) of the former City Home Rule Law was amended in 1960 to prohibit municipalities from transferring liability to property owners. The amendment provided that "no city shall have the power to adopt local laws transferring to abutting property owners its liability for failure to maintain its sidewalks and gutters in a reasonably safe condition” (L 1960, ch 1080). The effect of this amendment was to eliminate the powers of cities to adopt local laws, similar to Long Beach City Code § 256, transferring its liability to abutting property owners.

In 1963, the Legislature repealed the City Home Rule Law. Within the same year, the Legislature enacted the Municipal Home Rule Law (L 1963, ch 843) which replaced the repealed City Home Rule Law. The 1960 amendment to the former City Home Rule Law, prohibiting cities from transferring liability to abutting property owners for failure to maintain sidewalks, was not incorporated into the amended Municipal Home Rule Law. Section 11 (1) (j) of the Municipal Home Rule Law provides:

> "1. Notwithstanding any provision of this chapter, the legislative body shall not be deemed authorized by this chapter to adopt a local law *which supersedes a state statute,*if such local law: * * *

> "j. In the case of a city, transfers to abutting property owners its liability for failure to maintain its sidewalks and gutters in a reasonably safe condition.” (Emphasis added.)

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 *453municipality and not the abutting landowner *(City of Rochester v Campbell,*123 NY 405; *Roark v Hunting,*24 NY2d 470, 475). There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner *(Clifford v Dam,*81 NY 52), where the abutting owner affirmatively caused the defect *(Colson v Wood Realty Co.,*39 AD2d 511, 512), where the abutting landowner negligently constructed or repaired the sidewalk *(id.)*and where 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 *(Willis v Parker,*225 NY 159).

In *Rooney v City of Long Beach (supra)*the Appellate Division concluded that Municipal Home Rule Law § 11 (1) (j) invalidated section 256 of the Long Beach City Code and precluded a city from transferring its liability to abutting landowners. Appellant Rooney sustained injuries when she tripped over a curb stop (water valve) which was 2 *1h*inches above the sidewalk level. Rooney sued the owner of the property abutting the sidewalk, the City of Long Beach and the adjacent property owner who benefited from the curb stop. The City was found liable because it created the defective condition, either directly, or indirectly through an independent contractor. The adjacent property owner was found liable because he benefited from the curb stop. The abutting property owner, however, was not found liable because she did not create the condition, nor did she benefit from the water valve.

The Court stated that the 1960 amendment to the City Home Rule Law (L 1960, ch 1080), which prohibited cities from transferring liability to abutting property owners for failure to maintain sidewalks, invalidated section 256 of the City’s Code purporting to transfer such liability to abutting property owners. The Court further stated that the provisions of the amended City Home Rule Law were contained in the new Municipal Home Rule Law § 11 (1) (j) and were designed "to announce a new public policy of this State which is diametrically opposed to such transfers of liability” (42 AD2d, at 39). Thus, the Court concluded that although the Municipal Home Rule Law "is couched only in terms of conflict with statutory law, * * * the fact that the Legislature may have thought in 1964 that the source of this doctrine was statutory does not militate *454against our giving it an interpretation which saves it from being meaningless” *(id.,*at 38). Therefore, according to the *Rooney*Court, any conflicting local law was superseded by the State law.

The Court in *Rooney*misinterpreted the effect of section 11 of the Municipal Home Rule Law. Section 11 of the Municipal Home Rule Law plainly restricts the adoption of local laws which would supersede State statute. On its face, section 11 (1) (j) does not expressly prohibit localities from enacting statutes which transfer liability to property owners for injuries caused by defective sidewalks unless a contrary State statute exists. Further, the local statute here, section 256 of the Long Beach City Code, does not supersede a State statute. No other State statute, aside from Municipal Home Rule Law § 11 (1) (j), is involved in this action and Municipal Home Rule Law § 11 (1) (j) does not prohibit the transfer of a locality’s liability to abutting property owners for injuries sustained due to defective sidewalks.

Accordingly, the order of the Appellate Division should be reversed, with costs, and respondent’s motion for summary judgment denied.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order reversed, etc.

1

. Theresa Giunta died prior to commencement of the instant lawsuit and is not a party hereto.

2

. Appellant Mary Hausser seeks to recover for personal injury and loss of earnings and Henry Hausser seeks to recover loss of companionship and consortium.

3

. Appellants maintain that respondent had notice of the hazardous condition and was negligent in failing to maintain and repair that portion of the sidewalk abutting his property. Appellants claim that they offered to repair the broken sidewalk prior to the incident but respondent declined the offer. Respondent denies that appellants ever offered to repair the sidewalk.