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Even the Most Simple-Looking Laws can be Complex


Sidewalks are notorious places for a New York slip and fall or trip and fall injury. They may be cracked, broken, uneven, icy or slippery from rainfall or from being hosed off. Who is responsible for maintaining sidewalks in good repair – the City or the property owner? More importantly, who is liable when an accident occurs?

New York premises liability law regarding who is liable when someone suffers a personal injury on a dangerous sidewalk is governed by NYC Administrative Code section 7-210. In section a., this law states very clearly: “It shall be the duty of  the owner of real property abutting any sidewalk…to maintain such sidewalk in a reasonably safe condition.” Furthermore, section b. states that this owner “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 reasonable safe condition…”

Sounds simple enough, but wait, section b. also contains exemptions from the law. Specifically, this law “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.

This exemption can be broken down into a 3-prong test.

A homeowner is not responsible for the abutting sidewalk if the home is:

  1. a 1, 2 or 3 family residential real property – legal use (judge) or actual use (jury)?
  2. in whole or in part owner occupied – doesn’t have to be primary residence. is it owner-occupied as long as it is not occupied by someone else?
  3. used exclusively for residential purposes – what about home occupations?

Each prong raises questions of its own. How do we know if a property is a 1,2 or 3 family residential property? Do we have the judge determine its legal use, or do we ask the jury to determine its actual use? Is a home owner-occupied even if it is not a primary residence but only occasionally occupied by the owner, as long as it is not occupied by someone else? Is a home used exclusive for residential purposes if the homeowner-resident also engages in a home occupation? All of these issues may have to be litigated before the application of the statutory exemption may properly be decided.

Other issues abound as well, including the legally tricky definition of “proximate cause” you may have noticed included above. If you have been injured on a dangerously unsafe sidewalk, take your case to a skilled and knowledgeable New York personal injury attorney. In New York City, contact Leandros A. Vrionedes, P.C. for a free consultation.

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