Getting a Recovery for Injuries from a Broken Sidewalk; How to Win a Defective Sidewalk Case against the City or the Adjoining Property Owner


At the behest of Mayor Bloomberg in connection with the budget crisis, the City Council amended the law limiting the rights of people injured in falls on New York City sidewalks. The law became effective September 15, 2003, and affects only accidents that occurred on or after that date.

The new law makes the adjoining property owner legally liable for a defective public sidewalk. Typical defects include potholes, raised flagstones, cracks and raised and uneven sidewalks. Additionally, the property owner would be responsible for snow, ice, and trash removal. Now, the adjoining property owner has the legal responsibility to maintain the public sidewalk in a safe and reasonable condition, including making repairs and keeping it free of snow, ice and trash.

In most cases, this change may be positive in that there will be private insurance rather than a suit against New York City. Generally, private insurers pay more than the City to settle a case, and lawsuits with private insurers move more quickly in the courts. However, on the negative side, this new law may leave some injured people without recourse, such as those who have had the misfortune to fall on a sidewalk adjoining uninsured land, such as a slum tenement or a vacant lot.

Under the prior law, the City was legally responsible for the maintenance of the sidewalks, and the adjacent-property owner had no liability unless the owner either created the condition or had a special use, such as a driveway, that caused the defect. For example, under the old law, the adjoining-property owner had no liability for a pedestrian’s fall from a six-inch hole, even where the City had issued a violation to the owner. Under the new law, the owner would be legally responsible, and the City would have no liability.

The new law has an important exception. Owners of one-, two-, or three-family homes who reside in their homes and whose homes are exclusively residential are not legally responsible. New York City remains liable in such cases. However, if the owner rents out his residence, then this exception does not apply. Furthermore, this exception does not apply to one-, two-, and three-family homes that have commercial units. For example, it appears that a three family home that consists of a doctor’s office and two residential units (one occupied by the owner) would not fall within the exception, and the owner would be liable. Also, a building that consists of a store at the ground level and two or three apartments would not fall in the exception. Therefore, the owner of a one-, two-, or three-family home will be liable if the premises has any commercial use.

The intent of the law is to shift the cost of accidents to the adjoining-property owners so that the City would pay fewer settlements and judgments. The City Council provided the exception for one-, two-, and three-family homes to provide some financial relief to private home owners, since the owners had been hit with a record real-estate increase of at least 18.5 percent in 2003. In essence, this shifting of liability is to the owners of commercial property.

It was hoped that the new law would abrogate the much hated prior-notice law. It appears that the prior-notice law has been abrogated for cases against private-property owners, but the notice law is still in effect for cases against the City, such as those involving sidewalks adjacent to private homes.

Under the prior-notice law, the City could not be held liable for a sidewalk defect unless the Department of Transportation (DOT) received written notice of the nature and location of the defect, and such notice must have been received by DOT before the accident. The Big Apple Corp. was created by the trial lawyers at great expense to achieve this purpose. Big Apple annually surveys every public sidewalk in town. Cynically, the City required prior notice of potholes, but it did nothing with the information. It did not repair the defects. Sidewalk problems would remain unchanged for years. However, despite the fact that the City did nothing with prior-notice maps, prior-notice law was strictly applied and blocked recovery for many seriously injured clients.

The new law also requires that property owners carry insurance to cover accident lawsuits. However, the City shall not be responsible if the owner fails to obtain insurance.

As with all new laws, this change leaves many unanswered questions. We urge that you consult us early in the event of an accident on a public sidewalk.

If you have any questions regarding the new law please contact our office by calling (800) 581-1434.

Frequently asked questions about the new sidewalk law

Q: I own and reside in a two-family house. Will I be responsible if a pedestrian falls on the sidewalk in front of the house?

A: No. Owners of one-, two-, and three-family homes that are owner occupied and which are exclusively residential shall not be liable. However, it is always recommended that home owners and property owners carry insurance.

Q: I own and reside in a one-family home. Occasionally I do some work at home, such as answering e-mails and working on my home computer. Is my home now deemed a commercial building?

A: Probably not. Occasional work at home on evenings or weekends would not turn your home into a commercial building. But, if you work out of your home on a part-time basis and maintain a separate room or suite where you have customers call or employees work, then your home may be deemed a commercial building. For example, a tax preparer who sees clients in his home office during tax season would take his home out of the private home exception. This would be so if you deduct part of your rent or home expenses as a business expense on your tax return. In that event, the home would not be deemed a one-family home exclusively used as a residence, and the owner would be liable.

Q: I own a one-family house where I used to reside, but I now rent it out for extra income. Will I be responsible for sidewalk accidents?

A: Yes. You are deemed a commercial owner, and you will be liable for sidewalk falls.

Q: I got injured as a result of a fall on September 1, 2002. Is the City no longer liable?

A: No, the new law affects accidents which occur on or after September 15, 2003.

Q: Will this new law increase insurance rates?

A: Probably not. Your homeowner’s insurance should not increase because one-, two- and three-family residences are exempt from liability, and the City remains liable as it was under the old law. Homeowners’ policies already cover sidewalk claims. It is doubtful that insurance for commercial properties will increase, because commercial insurance policies already cover sidewalk accidents.

If you have been injured due to a defective or broken sidewalk please call me at 800-581-1434, or write to me at letters@seitelman.com.

Mark E. Seitelman, 6/21/08, www.seitelman.com

Please check our more recent post, “Getting a Recovery for a Sidewalk Fall; New York’s High Court K.O.’s Sidewalk Accident Cases.”  M.E.S., 12/23/08.

 

 

Advertisements

14 Responses to Getting a Recovery for Injuries from a Broken Sidewalk; How to Win a Defective Sidewalk Case against the City or the Adjoining Property Owner

  1. Paul says:

    But what about people who owned property in the city 30 or 40 years ago?
    Will they now be libel for someone injuring themselves on a sidewalk today in front of that property they owned many decades ago? It hardly seems right… especially since sidewalk conditions change over the years.
    Thirty or forty years ago, the city was libel for defective sidewalks. These former owners can’t be made to be retrospectively libel now.

  2. Paul, thank you for your comment.

    This law applies to accidents which occur AFTER September 15, 2003, and liability would be imposed on the current property owner who has a duty to keep the sidewalk in reasonable condition as well as repair defects.

    Therefore, assume the owner of 233 Broadway neglected the sidewalk and had owned the building from 1913 to 2003. The prior owner allowed the sidewalk to deteriorate so that it was a patchwork of holes and misleveled flagstones. Further assume that the building was sold 5 years ago and that the new owner did nothing to fix the sidewalk. If John Jones tripped on one of these holes on December 1, 2008, the current owner would be responsible.

    I hope that this answers your question.

  3. Paul says:

    Thank you Mark for you thoughtful and comprehensive answer.
    But maybe you misunderstood one point in my question.
    My father owned an apartment building in Flushing, Queens back in the early 70’s.
    He sold it in July 1973.
    If someone trips on a defective part of the sidewalk in front of that building TODAY (in 2008)… can they sue all previous owners… even owners going back 30 or 40 years. That’s what my father’s concern is. He’s 83 years old now, so he worries a lot. Obviously, there’s no way for someone to get insurance to cover such an event, so I supposed they should have no liability under the law.
    Sorry to take up your time, but you seem to be very knowledgable concerning this subject. Also, do you do any estate planning?

    • Your father will not be sued or held responsible for any sidewalk defects for the following reasons:

      1. He sold the property in 1973. Even assuming that he installed a dangerous sidewalk (e.g., height differentials of 8 inches between each flagstone), the subsequent owner or owners would have had the legal responsibility to correct the condition. The subsequent owners would have had 35 years to correct the sidewalk.

      2. There has been an interval of 35 years since he sold the property and relinguished control. Assuming that he committed any acts of negligence, such as installing a battlefield sidewalk, such negligence would be time-barred.

      3. Your father cannot be held responsible for a hole or crack or height differential (due to settling earth) which has caused an accident in 2008 or 2012. Generally, these defects are gradual and develop over time. A plaintiff could not show that the same condition existed in 1973.

      As a general proposition, the owner of the property at the time of the accident has the legal responsibility to keep the pavement safe and in good repair. Essentially, once the seller sells his property his legal liability regarding that property ceases regarding future accidents and occurrences.

      Therefore, your father can rest easy that his liability with the Flushing apartment house is over.

      Yes, we do estate planning. Please feel free to call me at 212-962-2626.

      Thank you.

  4. […] owner is not liable unless he had a special use (e.g., a driveway) or had made a faulty repair.  See our prior post.  If the City has no prior notice of the defect on a map, there is no […]

  5. bridget dolphin says:

    I have a broken sidewalk from a huge tree in violation with NYC.

    NYC came in 1997 and issued a violation for the sidewalk. Every flag was marked with an “X” to indicate that it was from the tree.

    I have tried everything from senators to councilmen to the Building Department to Community Boards for advice in the last 13 years. All that they did for me is to remove the tree.

    The tree has been removed, however, the sidewalk damage remains. They came back 2 years later and said that since the tree was removed the City is not responsible for sidewalk damage.

    I now have water coming through these huge holes into my basement wall and a huge puddle in front of my home. I issued photos of the damage and the puddle and got absolutely no where. Neighbors have fallen because of the damage with walkers and canes. They reported it also.

    Please contact me asap. I am fed up and feel Ii shouldnt have to pay for this new sidewalk. Thanks.

    • Dear Ms. Dolphin,

      You have quite a few problems going-on at once.

      As a general proposition, the adjoining landowner has the obligation to maintain and repair the adjoining sidewalk. However, in view of the complexities of your problem, you should consult an attorney to see what rights, if any, you may have against the City or any other parties.

      Good luck, and thanks for your comment.

  6. Norman Sas says:

    Would this situation qualify for the private house exemtpion? A legal two family house where the owner occupies and lives in one section but rents out the other.

    • Yes, the owner of the two family house would not be liable for a sidewalk fall.

      The key is that the owner occupies part of the house and that the house is solely a residence. If a doctor had a ground floor office, then the owner would not enjoy the exemption.

      This exemption goes for one, two, and three family homes where the owner occupies one of the units.

      Thank you for your inquiry.

  7. Nick Koundouroudas says:

    The city said that I have to fix every part of my sidewalk. Some parts of my sidewalk are fine. Why?

  8. Olivia says:

    Dear Mark:
    I work for a non-profit corporation. I contacted NYC Dept. of Parks to investigate the tree roots that are pushing the sidewalk up making the pavement unlevel. These trees were planted by the city, and we just found out that we are liable for replacing the sidewalk. We have owned the property since 1983.

    Is there anything we can do?

    • Thank you for your inquiry.

      I do not have an answer. You need to confer with a real estate attorney who does not just handle buying and selling but who can also handle this land use issue. One place to check is the Legal Referral Service of the Bar Association at 212-626-7373.

      Good luck.

  9. competitions says:

    visit england website…

    […]Getting a Recovery for Injuries from a Broken Sidewalk; How to Win a Defective Sidewalk Case against the City or the Adjoining Property Owner «[…]…

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: