Wade Clark Mulcahy LLP

One question often asked by residential property owners in New York City is whether they have an obligation to shovel and maintain public sidewalks abutting their properties in the winter. Generally, an owner or lessee of a residential property next to a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so. Without such a statute or ordinance, an owner or lessee can only be held liable if they or someone on their behalf undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous.

In 2003, the New York City Council enacted section 7-210 of the Administrative Code to shift tort liabilities for injuries resulting from hazardous sidewalk conditions from the City to abutting property owners. However, this provision does not apply to one, two, or three family residential real property that is (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes.

The New York Appellate Division, Second Department recently examined this provision in<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Davila-v.-Parada.pdf">Davila v. Parada</a></em>. In that case, the plaintiff claimed that she was injured after slipping and falling on ice on a public sidewalk abutting the defendant’s property. The lower court dismissed the claim on the basis that defendant satisfied the homeowner’s exception set forth in Section 7-210.

The Second Department affirmed, holding that the defendant established that the property was an owner occupied one family residence and therefore, the defendant had no statutory duty to clear snow or ice from the public sidewalk next to his property. The Court also found that the defendant established that he did not exacerbate any dangerous condition on the sidewalk as he, nor anyone else acting on his behalf, undertook to remove any snow or ice where the plaintiff fell.

The <em>Davila</em> decision answers the question posed at the outset and echoes that where a property satisfies the elements necessary for the homeowner’s exemption of NYC Administrative Code Section 7-210, a residential property owner has no duty to remove snow and ice from a public sidewalk abutting the property. The key is that the property must be owner occupied and used exclusively for residential purposes.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.