Wade Clark Mulcahy LLP

<p style="text-align: justify;">We present a case this week highlighting the liability of sidewalk maintenance between the City of New York and an abutting property owner. In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2021/10/Konstantinos-Gallis-v.-23-21-33-Rd.-LLC.pdf">Konstantinos Gallis v. 23-21 33 Rd., LLC</a></em>, 2021 NY Slip Op 05549 (2d Dept. 2021), the plaintiff claimed personal injury after he tripped and fell on a raised part of sidewalk. The location of the fall was next to a tree owned by the City of New York. Plaintiff alleged the tree roots had raised the sidewalk allegedly causing the hazard. The premises owner 23-21 33 Road LLC defaulted on the Complaint, and plaintiff sought summary judgment on liability against the City of New York alleging the City allowed for the tree roots to grow and cause the hazard ultimately leading to plaintiff’s injury. The trial court denied the plaintiff’s motion and the Second Department affirmed that decision.</p>
<p style="text-align: justify;">The Second Department re-affirmed Administrative Code §7-210 and its precedent which shifts liability for defective sidewalk conditions from the City to the abutting property owner. Importantly, Administrative Code §7-210 covers any defects involving the negligent failure to repair or replace defective sidewalk flags, and <em>failure to remove snow, dirt, or other materials from the sidewalk. </em>The court determined the defective sidewalk conditions caused by growing tree roots is covered under Administrative Code §7-210 and noted an abutting property owner may cut or remove tree roots to repair sidewalks after obtaining permission from the City. Also important in the Second Department’s decision is that the exemption of Administrative Code §7-210 under subsection (b) allows for the City to be held liable if the property is “in whole or in part, owner occupied” and used for “exclusive residential purposes.” The reasoning behind this exemption is that the City should only be allowed to shift the burden of sidewalk defects to commercial properties and not “small residential properties” who would not have the resources for constant monitoring and repair of the sidewalk.</p>
<p style="text-align: justify;">This case highlights the specific variables wherein the City of New York can and cannot be held liable for any sidewalk defect or defect caused by inclement weather abutting a property owner’s building under almost any circumstances. The liability for a defect on the sidewalk is almost always shifted to the abutting property owner, and the caveat exception would apply to residential properties which are at least in part owner occupied. Thus, any commercial property owner should constantly monitor their sidewalks, and in the event of a defect caused by a tree, they should immediately contact the City of New York for permission to rectify the defect.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this article.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken</a>.</p>