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Municipal Liability for Defective Sidewalks Upheld Outside of the Five Boroughs (NY)

May 4, 2016

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The issue as to whether an adjacent landowner or municipal authority is responsible for the maintenance of the sidewalks adjacent to the premises is litigated constantly. Within the City of New York, an update to the Administrative Code placed this burden onto the adjacent landowners, relieving the City of the duty to maintain the sidewalks.
However, counties and courts outside of the five boroughs have continued to uphold that the duty to maintain the sidewalks rests with a municipality. In <em><a href="">Kilfoyle v. Town of Hempstead</a>,</em> 2016 Slip Op 0314 (2d Dept. 2016), venued in Nassau County, plaintiff allegedly slipped and fell on a raised and defective sidewalk flag adjacent to the defendant’s premises in the town of Hempstead.
To be liable, plaintiff would have to prove that the defendant landowner caused the defective condition in some way, made special use of the sidewalk or a statute would have to exist to impose tort liability on to the adjacent landowner. The defendant landowner did not make any repairs at any time, did not have any special use of the sidewalk and was not required to maintain it by law. Plaintiff attempted to raise an issue of fact by alleging that the adjacent landowner caused the defect by snow and ice removal efforts over the years.
The Appellate Division, Second Department held that the defect in the sidewalk was likely caused by overgrown tree roots and that plaintiff failed to raise a triable issue of fact against the adjacent landowner. The Court further held that the duty to maintain this sidewalk rests with the municipality.  Perhaps plaintiff should have fallen a few miles to the west.  Thanks to Dana Purcaro for her contribution.  Please email <a href="">Brian Gibbons</a> with any questions.


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