§ 7-210 Liability of real property owner for failure to maintain sidewalk in a reasonably safe condition.
a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.
b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.
c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition. This subdivision shall not be construed to apply to the liability of the city as a property owner pursuant to subdivision b of this section.
d. Nothing in this section shall in any way affect the provisions of this chapter or of any other law or rule governing the manner in which an action or proceeding against the city is commenced, including any provisions requiring prior notice to the city of defective conditions.
HISTORICAL NOTE
Section added L.L. 49/2003 § 1, eff. Sept. 14, 2003 and applying to accidents occurring on or after such date.
CASE NOTES
1. The City is generally liable for accidents caused by sidewalk defects that occurred prior to September 14, 2003. Rodriguez v. City of New York, 12 A.D.3d 282, 784 N.Y.S.2d 855 (1st Dept. 2004). Where a sidewalk accident occurred prior to that date, the abutting property owner is not liable unless the owner either caused the defect to occur because of some special use, or actually created the defect. The mere fact that the accident occurred in a sidewalk area adjacent to that portion used by the owner as a driveway does not, without more, establish liability against the owner. Zektser v. City of New York, 18 A.D.3d 869, 796 N.Y.S.2d 656 (App.Div. 2d Dept. 2005).
2. A pedestrian was injured when she slipped and fell on ice and snow on a public sidewalk, adjacent to a private business. Where, as here, the accident took place before Sept. 14, 2003 when revisions to the Administrative Code took place, the abutting property owner is liable for an injury sustained by an individual only if that person's ice and snow removal efforts made the sidewalk more hazardous. Martinez v. City of NY, 20 A.D.3d 513, 799 N.Y.S.2d 252 (2nd Dept. 2005).
3. In King v. Alltom Properties, 16 Misc.3d 1125(A), 2007 WL 2333086 (Sup.Ct. Kings Co.), a pedestrian fell over the remains of a broken signpost, which was protruding from the sidewalk. The question was whether the City or the adjoining property owner was responsible for the accident. City Charter Sex. 2903 requires the City to maintain signs for controlling traffic but the City is responsible for maintaining signposts. Thus, where a pedestrian allegedly was injured when she fell over the remains of a metal signpost protruding from the sidewalk, the City, rather than the adjoining property owner, is legally responsible for the accident. The court then considered Admin. Code § 19-152, which requires property owners to maintain sidewalks, lists nine categories of substantial defects which owners must repair. Eight of those nine categories involving tripping hazards pertaining to sidewalk flags being out of level, broken or loose. One category, however, in § 19-152(a)(6), refers to "hardware defects," which mean hardware or other appurtenances not flush within one-half inch of the sidewalk surface, or cellar doors that defect greater than one inch when walked on, are not skid resistant, or are otherwise in an unsafe condition. Thus, if the landowner was to be held responsible for the signpost, the signpost had to be considered "hardware" or an appurtenance. Section 19-152 does not itself give a clear indication of what falls within these categories. However, Admin. Code § 19-147, entitled "maintenance of street hardware," does shed light on the question; it provides that utility manhole covers, castings or other street hardware shall be maintained flush with the existing surrounding grade. When juxtaposed with the mention of cellar doors in § 19-152, it is evidence that "hardware" and "appurtenances" do not refer to things that, by their very nature, are intended to protrude from the sidewalk. Rather, they refer to that category of street hardware that is meant to be embedded in the sidewalk and, when properly constructed, is flush with the surrounding sidewalk. Therefore, since such things as signposts, fire hydrants and lightposts are intended to protrude from the sidewalk, they do not fall within the ambit of § 19-152. The court rejected the City's argument that the abutting property owner had a duty to notify the City of the existence of a broken signpost. The statutory framework set forth in Admin. Code § § 7-210 and 19-152 only impose a duty to maintain and nowhere impose a duty to notify the City of dangerous conditions.
4. In one case, plaintiff fell in a gap in a tree well located on a sidewalk. The area surrounding the tree was lined with concrete blocks, although one of the blocks was missing where the tree fell. The question was whether the City or the adjoining property owner, Con. Ed., was liable. The resolution of the issue depended in part on the definition of "sidewalk." Section 7-210 does not itself contain a definition of "sidewalk." However, Title 19 of the Administrative Code, which also addresses sidewalk maintenance, says that it is "that portion of the street between the curb lines . . . and the adjacent property lines, but not including the curb, intended for the use of pedestrians." The tree line here is located between the curb and the adjacent property line, so it fits within one part of the definition. However, what about the part of the definition, "intended for the use of pedestrians." The court stated that the language does not preclude liability on the part of the adjoining property owner. Con. Ed. argued that liability could not be shifted to it because the City was responsible for the cultivation of trees (Adm. Code. § 18-105). However, the defect here was a missing concrete block, which was not related to trees under Admin. Code § 18-104 or 18-105. In other words, the responsibility to maintain a tree and the responsibility to maintain the area surrounding a tree are unrelated obligations. Under these circumstances, and in light of the fact that the plaintiff did not allege that the missing block was caused or created by any action on the part of the City, the City was not liable, and responsibility shifted to Con. Ed. Callan v. City of New York, 17 Misc.3d 248, 841 N.Y.S.2d 196 (Sup.Ct. Kings Co. 2007).
5. A mixed-use building, combining a one-family residence with a store or office, does not qualify for the residential use exception to the statute. Thus, the City is not liable for falls occurring on the sidewalk, and the liability, if any, is with the property owner. Aurelien v. City of NY, 15 Misc.3d 1116(A), 839 N.Y.S.2d 431 (Sup.Ct. Richmond Co. 2007).
6. In Seplow v. Solil Management Corp. 15 Misc. 3d 1138(A), 841 N.Y.S.2d 823 (Sup.Ct. N.Y. County 2007), the plaintiff allegedly was injured in a fall on a portion of sidewalk that was uneven by reason of tree roots. The court held that the City was not responsible for the accident. A similar result was reached in Goss v. Briar Owners, Inc. 14 Misc.3d 1239A, 836 NYS2d 499 (Sup.Ct. Queens 2007).
7. In one case, the plaintiff fell when she lost her footing after stepping into a metal circular hole that remained after a damaged fire hydrant had been removed by the City. The issue was whether the adjoining property owner was required to repair holes created by missing fire hydrant. The court held that the City had the responsibility to correct the defect. The court found that Admin. Code § 19-152 did not place upon the adjacent landowner the duty to repair or repave a sidewalk defect attributable to the City. Not only is a fire hydrant the property of the City, but its location and maintenance fall within the sole province of the municipal authorities (see 15 RCNY § 20-08). The court further said that § 7-210 is construed against the City. Manning v. city of NY, 16 Misc.3d 1132(A), 2007 WL 2446562 (Table)(Sup.Ct. Richmond Co. 2007).
8. A pedestrian was injured when she slipped and fell on ice on a public sidewalk. The injury took place in front of a warehouse rented by the tenant. Where an accident took place before the effective date of the Admin. Code § 7-210, an adjoining landowner may be held liable for the alleged defect in the sidewalk only if it "either created the defective condition or caused the defect to occur because of a special use." The use of a sidewalk as a driveway constitutes a special use. Where a defect that causes an accident occurs in a part of the sidewalk used as a driveway, the abutting landowner, on a summary judgment motion, bears the burden of establishing that he or she "did nothing to either create the defective condition or cause the condition through" the special use of the property as a driveway. In this case, the defendant could not establish that the allegedly defective condition that resulted in plaintiff's accident was not located on the portion of the sidewalk which was used as a driveway. The defendant also failed to show that it did nothing to cause that condition through its special use of the property as a driveway. Accordingly, the court denied the motion for summary judgment. Campos v. Midway Cabinets, Inc. 51 AD3d 843, 858 N.Y. 742 (2d Dept. 2008).
9. Plaintiff was injured when she tripped over a growth from a tree that spilled out onto sidewalk in front of multi-use residence owned by defendants. In moving for summary judgment dismissing the case, defendant cited Vucetovic and contended that they were not responsible for maintenance of trees. The court, however, denied the motion for summary judgment. While it is the city's primary obligation to maintain the trees, if a tree creates a dangerous condition on a property owner's sidewalk, the property owner cannot hide behind the City's possible negligence to avoid responsibility. The property owner has a right to seek a permit from the city to correct any sidewalk defect caused by a City tree. Admin. Code of the City of NY 18-129(a).
The court distinguished Vucetovic, which involved a fall in a tree well not from a defect. In DiGregorio, however, plaintiff fell over a tree growth on the sidewalk in front of a residential building whose owner was obligated to maintain the sidewalk pursuant to Adm. Code § 7-210. Liability does not shift back to the City when the accident occurred due to the growth of tree roots. DiGregorio v. City of NY 2008 NY Slip Op. 51013U, 2008 NY Misc. Lexis 2951 (Sup. Ct. NY Kings Cty.). See also, Falco v. Jennings Hall Senior Citizen House Development Fund, Inc., 19 Misc.3d 1107 (A), 2008 NY Slip Op. 50595(U) (Sup.Ct. Kings Co.).
10. A pedestrian was injured when he fell on a stairway owned by the City. When suit was brought against the adjoining property owner based on the owner's alleged failure to maintain the sidewalk, the court had to decide how to define "sidewalk." Since § 7-210 does not define "sidewalk," the court had to look to other sections of the Admin. Code for an appropriate definition. The plaintiff urged the court to use the definition in Sec. 7-201, which includes steps and stairways. The court, however, held that 7-201 pertained to notice requirements against the City alone, and did not affect other entities such as adjoining property owners. Instead, the court used Admin. Code Sec. 19-101(d), whose definition of "sidewalk" did not include stairways. Accordingly, the court granted summary judgment dismissing the complaint against the adjoining property owner. Fernandez v. Highbridge Realty Assoc. 49 AD3d 318, 853 NYS2d 71 (1st Dept. 2008).
11. Plaintiff slipped and fell on snow and ice on a sidewalk adjacent to a building. Since the accident took place prior to Sept. 14, 2003, and the old law applied, plaintiff could not recover against the adjoining property owner in the absence of evidence that they undertook snow removal efforts which made the naturally occurring conditions more hazardous. Thus, the action was dismissed. Everly Bisontt v. Rockaway One Company LLC 2008 NY Slip Op. 638, 47 AD3d 862, 850 NYS2d 621, 2008 NY App. Div. Lexis 629 (AD2d Dept.).
12. In 2001, plaintiff tripped and fell on a city sidewalk in front of defendant's supermarket. Prior to the enactment of Sec. 7-210 in 2003, the duty to maintain the public sidewalks rested with the City. In such as case, an abutting landowner would be liable only if it created the defective condition or made a special use of the sidewalk. The court held that the mere ownership of property and the occasional use of the side of a store for deliveries does not constitute a special use. Aracelis Rodriguez v. City of NY 2008 NY Slip Op. 1433, 48 AD3d 298, 851 NYS2d 511, 2008 NY App. Div. Lexis 1404 (App. Div. 1st Dept.).
13. Section 7-210 was designed to shift liability away from the City for sidewalk accidents other than sidewalks abutting one-family homes used exclusively for residential purposes. An adjoining property owner is not liable for an accident caused by tree roots, which are still the responsibility of the City of New York. Mastromarino v. City of NY 2008 NY Lip Op 50377U, 18 Misc.3d 1140A (Sup. Ct. Kings Cty. 2008).
14. In Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 2008 NY Slip Op. 4901, 2008 NY Lexis 1464,, plaintiff's accident occurred when he stepped into a tree well and tripped on one of the cobblestones surrounding the dirt area containing a tree stump. The tree well was located in front of the building owned by Epsom, but the tree well apparently had been cut down prior to Epsom's acquisition of the building. Approximately four months before the accident, the City cut down the tree. Before addressing the language of § 7-210 itself, the court had to examine the background underlying its enactment.
Prior to the adoption of § 7-210, property owners in NYC had a statutory duty to install, construct, repave and repair the sidewalk flags in front of or abutting such property (Admin. Code § 19-152(a) and to remove the snow or ice, dirt, or other material from the sidewalk (Admin. Code of NYC § 16-123(a)). Failure to comply with both of these laws resulted in fines or an obligation to reimburse the city for its expenses under § 19-152(e) and 167-123(e)(h). Under the previous statutory scheme, the City, as the owner of the sidewalks, generally remained liable for injuries to pedestrians caused by defective sidewalk flags, assuming there was actual written notice of a defect (Adm. Code 7-201). Under that scheme, an abutting landowner could be held liable only if the owner affirmatively created the dangerous sidewalk condition or negligently made repairs or used the sidewalk in a special manner for its own benefit.
In 2003, the City Council modified this regime by adopting section 7-210 of the Admin. Code which states: a) It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition. b) The owner of real property, abutting any sidewalk, and not limited to the intersection for the corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalk in a reasonably safe condition. Failure to install, construct, repave, repair or replace defective sidewalk and the negligent failure to remove snow, ice, etc. can result in an owner's liability. c) NYC shall no longer be liable for injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks in a reasonably safe condition.
In other words, under the new law, tort liability has been switched from the city to the owner of the property (with the exception of owner occupied residential buildings of three or fewer units) under § 7-210. The statute was a cost-saving measure, designed to shift liability for sidewalk maintenance from the City to the property owner, whose legal obligation it was to maintain and repair sidewalks. The language of § 7-210 mirrors the duties of property owners with regard to sidewalks as set forth in Admin. Code Secs. 19-152 and 16-123. Both plaintiff and the City argued that tree wells should be considered an integral part of the sidewalk for purposes of Sec. 7-210, so that Epsom could be held accountable for the accident. Although Sec. 7-210 does not define "sidewalk," plaintiff relied on Sec. 19-101(d), which describes a sidewalk as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." Although the Court of Appeals acknowledged that the case presented a close question, it agreed with Epsom that Sec. 7-210 does not impose civil liability on property owners for injuries that occur in City-owned tree wells. The court narrowly construed Sec. 7-210, because the broad construction sought by plaintiff would have imposed civil liability on adjoining property owners where no such liability existed before.
Sections 19-152 and 16-123, the provisions whose language Sec. 7-210 tracks, contemplates the installation, maintenance, repair and clearing of sidewalks or sidewalk flags. Significantly, tree wells are not mentioned in Secs. 7-210, 16-123 and 19-152. Given the statutory silence and the absence of any discussion of tree wells in the legislative history, it appeared that the City Council did not consider the issue of tree wells liability when it drafted Sec. 7-210. If the City Council desired to shift liability for accidents involving tree wells exclusively to abutting landowners in derogation of the common law, it needed specific and clear language to accomplish this goal.
In addition to the above, the court considered Admin. Code Sec. 18-104, which gives the City Parks and Recreation the exclusive jurisdiction over the "planting, care and cultivation of trees; individuals cannot lawfully cut or remove a tree without first obtaining the Department's permission. In other words, if adjoining property owners are not in control of trees, they certainly cannot be expected to maintain tree wells. Accordingly, the court held that a tree well was not part of the "sidewalk" for purposes of Section 7-210, and dismissed the action against Epsom.
15. In one case, plaintiff sought damages for injuries sustained when crossing a NYC street. Her foot entered a "dip or a slope" in the sidewalk causing her to fall. The City claims that plaintiff violated NYC Admin. Code §7-210 which applies to sidewalk accidents occurring on or after Sept. 14, 2003, which shifts liability for accidents from the City to the abutting landowner. The issue presented here is whether plaintiff's accident falls under this provision. Section 7-210 provides that it shall be the duty of the owner of real property abutting any sidewalk, including but not limited to, the intersection for corner property, to maintain the sidewalk in a reasonably safe condition. The director of the pedestrian ramp unit for the NYC Dept. of Transportation, appearing on behalf of the City, stated that pedestrian ramps and sidewalk units are distinct constructions and the ramp at the location at issue here was constructed by the City prior to plaintiff's accident. The testimony shows that the pedestrian curb-cut ramp was not constructed by, on behalf of, or for the benefit of adjoining property owners. A "pedestrian ramp" is not part of the "sidewalk." Therefore, it does not fall under §7-210. Further, plaintiff alleges that her accident occurred, not because of a failure to maintain or repair a defect in the sidewalk, but rather, because of an alleged improperly designed ramp. In other words, the adjoining property owner is responsible for lapses in maintenance but not for the steepness of the slope, which was created by the City. Accordingly, the court dismissed the action as against the adjoining property owner. Rodriguez v. Sequoia Property Management Corp., 878 N.Y.S.2d 606 (Sup.Ct. Queens Co. 2009).
16. Although "sidewalk" is not defined in section 7-210 of the Administrative Code, section 7-201[c] [1] [b] states that a sidewalk "shall include a boardwalk, underpass, pedestrian walk or path, step or stairway." No mention is made of a "curbstone." Moreover, Section 7-201[c] [1] [a] of the Administrative Code provides, in pertinent part, that "[t]he term street' shall include the curbstone ..." Therefore, the curbstone is not within the defendant's responsibility to maintain or repair as it is not a part of the "sidewalk." Rodrigues v. Brazal South Holdings, LLC, 22 Misc.3d 1115(A), 2009 N.Y. Slip Op. 50140(U), 2009 WL 212582 (Table) [Sup Ct., Queens Co. 2009].
17. An abutting landowner's liability to maintain the "sidewalk," is limited to its failure to repair, replace, etc. "sidewalk flags," it does not extend to include a duty to repair, replace, etc., "pedestrian ramps." Ortiz v. City of New York, 67 A.D.3d 21, 884 N.Y.S.2d 417, [1st Dept 2009] rev'd on other grounds14 N.Y.3d 779, 898 N.Y.S.2d 544 [2010]. Admin Code § 19-112 sets forth the requirements for the construction of ramps. Thus, by definition, section 19-112 includes ramps as part of the curb-not the sidewalk-in both its title heading and text. Therefore, the abutting property owner is not responsible for maintaining those ramps.
18. The sidewalk metal grating owned by Con Edison covering a street vault it owns is not a part of the "sidewalk" for purposes of Admin Code § 7-210 which requires that owners of real property maintain the sidewalks abutting their properties in a reasonably safe condition. Hurley v. Related Mgt. Co., 74 A.D.3d 648, 904 N.Y.S.2d 41 [1st Dept 2010]. RCNY § 2-07 governs sidewalk grates, placing the responsibility for their maintenance and repair on the owner of such cover or grating. Furthermore, section 2-07[b][1] also requires that the owner of such grates monitor the "condition of the covers or gratings and the area extending twelve inches outward from the perimeter of the hardware." Thus, where a pedestrian was injured when she slipped and fell on the grate, the owners of the abutting property did not "have access to, or the ability to exercise control over, the grate on which ... the plaintiff allegedly slipped and fell." and the complaint was dismissed as to that defendant only.
19. Plaintiff slipped and fell on a sidewalk abutting the appellants' property. The defendant moved for summary judgment, claiming it owed no duty of care to the plaintiff. The lower court denied the motion and on appeal, the Appellate Division, Second Department reversed. Where the defendant has established that the certificate of occupancy for the subject property permits three families to reside therein, the property is owner-occupied and used exclusively for residential purposes, defendants are entitled to summary judgment as a matter of law. One-, two- and three-family residential real property that is [i] in whole or in part, owner occupied, and [ii] used exclusively for residential purposes is exempt from the "sidewalk law." Schwartz v. City of New York, 74 A.D.3d 945, 903 N.Y.S.2d 93 [2nd Dept 2010].
20. Administrative Code § 7-210 only requires that NYCHA maintain sidewalks abutting its property, and Administrative Code § 19-101(d) defines "sidewalk" as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." Thus, once NYCTA established that plaintiff fell on the curb, and it neither created the defect nor made a special use of the curb, defendant was entitled to summary judgment dismissing the complaint. Ascencio v. New York City Housing Authority, 77 A.D.3d 592, 910 N.Y.S.2d 61 [1st Dept. 2010].
21. Although the restaurant owner and persons covered by premises liability insurance thought plaintiff had fallen on the abutting sidewalk, not on steps in to the restaurant, this did excuse their late notice of claim to their insurer. The insureds took no steps to ascertain the possibility of their liability for the accident and did not notify their insurer until 14 months after the accident happened. Tower Ins. Co. of New York v. Red Rose Restaurant, Inc., 77 A.D.3d 453, 908 N.Y.S.2d 681 [1st Dept 2010].
22. The owner of an owner-occupied two-family house, used exclusively for residential purposes, is exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for the negligent failure to remove snow and ice from the sidewalk. However, if the owner undertakes to remove snow and ice and its efforts make the naturally-occurring condition more hazardous or caused the defect to occur because of a special use, then the owner may be held liable. John v. City of New York, 77 A.D.3d 792, 909 N.Y.S.2d 142 [2nd Dept 2010].
23. Although city-owned tree wells are excluded from the definition of "sidewalk," as that term is defined in Administrative Code § 7-210, a property owner may still owe a duty relating to a tree well if that owner creates a defective condition on it or uses it for a special purpose, such as when it installs an object on it, or varies the structure. Kleckner v. Meushar 34th Street, LLC, ____ A.D.3d ____ , 914 N.Y.S.2d 164, 2011 WL 102580 [1st Dept 2011].
24. A City sign or signpost is not part of the 'sidewalk' for purposes of Administrative Code § 7-210. Smith v. 125th St. Gateway Ventures, LLC, 75 AD3d 425, 903 N.Y.S.2d 231 [1st Dept 2010]. However, the stump of a metal signpost anchor protruding from the sidewalk constitutes a condition for which prior written notice is required under the Pothole Law. Fermin v. City of New York, 28 Misc.3d 1235(A), 2010 WL 3583984 (Table) citing Amabile v. City of Buffalo, 93 NY2d 471, 693 N.Y.S2d 97 [1999].
