The New York City sidewalk law has been in effect since September 13, 2003 (Administrative Code sec. 7-210). See our prior post here.
Even though the the law has been in effect almost six years, there are still areas of uncertainty.
In sum, the law imposes liability on the adjoining property owner for sidewalk defects. Previously, the City was liable for the sidewalk’s condition, and the adjoining property owner would not be liable unless he created the defect or had a special use of the sidewalk, such as a driveway.
Now, the following adjoining property owners are exempt from liability where:
- it is an one, two, or three family home;
- the units must are used solely for residential use; and
- the owner lives in one of the units.
If an injured person falls in front such an owner occupied home, then the property owner would not be liable. The City would be liable.
Here are some potential problems:
- What happens if the building is an illegal four family house? Would this make the property owner liable? I would answer yes in that the owner should not be allowed to seek the shield of the law while violating the certificate of occupancy.
- The law protects the owner if he lives in the building. What happens if the owner has a relative occupying the home? Let’s assume that the relative, a daughter, does not pay rent and that the owner uses this residence part time. Would this homeowner be protected from liability?
- The law protects the residence only if it is used exclusively as a residence. What happens if the owner runs a business out of the basement or his study?
Another significant, unresolved problem is whether the injured plaintiff must show prior written notice of the defect if the adjoining property owner is the City. Does the prior written notice law remain in effect in these instances?
In some instances both the City and private owner should be joined in the lawsuit. The ultimate issue of liability can be determined after discovery.
If you have been involved in a sidewalk accident, please feel free to call me at 800-581-1434 or write to firstname.lastname@example.org for a free consultation.
Mark E. Seitelman, 9/4/09, www.seitelman.com.