Court Affirms Dismissal of Sidewalk Trip-and-Fall Case Under NYC Sidewalk Law’s “Residential” Exemption

In Meyer v. City of New York, the Appellate Division, Second Department affirmed the dismissal of plaintiff’s trip-and-fall personal injury suit against defendant real property owners.

Defendants moved for summary judgment “on the ground that, under section 7-210 of the Administrative Code of the City of New York (hereinafter the Sidewalk Law), they were not subject to liability for the alleged defect in the sidewalk.”

The court explained the law and its “residential” exemption:

The Sidewalk Law was enacted in 2003 to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners. It provides that the owner of real property abutting a sidewalk shall be liable for any injury proximately caused by the failure of the owner to maintain the sidewalk in a reasonably safe condition. The Sidewalk Law, however, exempts from liability “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 recognizes the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair.

The defendants established prima facie that their property was covered by the exemption by submitting evidence showing

that the one-story structure abutting the portion of the sidewalk where the plaintiff fell was attached to the home in which one of the respondents lived by herself, and that it was used exclusively for storage of the family’s personal belongings.

While an earlier certificate of occupancy showed a permissible commercial use and at one time the structure had been used commercially, “the present use of the property was entirely residential.”

Defendants also established that they could not be held liable under common-law principles. “Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use.” Defendants established that they did not create the defective condition that allegedly caused the plaintiff’s accident, and they did not contend that the defect was caused by a special use.


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