Court of Appeals for New York, Albany. (Courtesy photo)

An attorney for the owner of a Brooklyn building argued before the state's highest court Tuesday that if the panel sides against his client and assigns them liability for an injury suffered on an icy sidewalk, it would effectively do away with the concept of an "out-of-possession landlord."

The lawsuit, now before the New York Court of Appeals, was brought by Xiang Fu He, who claimed he was injured when he slipped and fell on ice in front of his job on Flushing Avenue in Brooklyn in 2007. His employer, SDJ Trading, had leased the building from the defendant in the case, Troon Management.

The lease included a provision that said SDJ was specifically responsible for keeping the sidewalk "clean and free from ice [and] snow."

Troon moved to throw out the lawsuit, citing that provision of the lease and the fact that they were out-of-possession landlords, which are building owners who essentially cede control of the property to their tenant.

Those landlords, historically, would not be liable to employees of a lessee or other third-parties for personal injuries caused by unsafe conditions at the property because they've relinquished control to their tenant, legal experts have said.

But the wrinkle in this case is a rule enacted by New York City in 2003 to transfer liability of unsafe sidewalks from the city to adjoining property owners.

That rule, New York City Administrative Code § 7-210, states that property owners "shall be liable for any injury to property or personal injury, including death, caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition."

Kenneth Gorman, a solo practitioner from Manhattan representing He, argued that the rule allows landlords to delegate their responsibility of keeping the sidewalk safe and clear of ice and snow to the tenant, but that the initial liability can't be transferred along with it.

"The landlord can delegate to the tenant, but the landlord would still be liable to an injured third party," Gorman said. "A tenant can be held liable to the owner for indemnification, but for the most part tenants don't have any obligation or duty of care to pedestrians."

In other words, the landlord can seek compensation from the tenant after the fact when they're held liable for an injury, but can't cede that initial liability to the lessee.

That's the position the trial court judge took in the case when it denied a motion from Troon Management to throw out He's lawsuit. Manhattan Supreme Court Justice Carol Edmead wrote that, despite the part of the lease requiring SDJ to clear the sidewalk, the ultimate liability lies with the owner of the property.

"The city ordinance is clear in imposing a duty to maintain the sidewalk in a reasonably safe condition on 'the owner of real property abutting [the] sidewalk' … including liability for personal injury," Edmead wrote.

That decision was reversed in a one-paragraph decision from the Appellate Division, First Department last year. The panel ruled that, because Troon was an out-of-possession landlord, it couldn't be held liability for He's injuries.

The First Department wrote that "because they were out-of-possession landlords with no contractual obligation to keep the sidewalks clear of snow and ice, and the presence of snow and ice does not constitute a significant structural or design defect."

The appellate court made no mention of the New York City rule transferring liability for sidewalk injuries from the city to property owners.

Scott Taylor, an attorney from Rosenbaum & Taylor in White Plains, represented Troon before the Court of Appeals on Tuesday. He argued the court would essentially eliminate the idea of an out-of-possession landlord if it reverses the First Department's ruling.

"By looking at it the way appellant wants this court to look at it, you're basically eliminating the concept of the out of possession landlord," Taylor said.

He argued that the text of § 7-210 did not expressly prohibit landlords from transferring their sidewalk-clearing duties to lessees, and any liability that would come along with that responsibility. In their view, Taylor said, the lease between his client and He's employer did as much.

"I think if they intended § 7-210 to be non-delegable they could have said in the provision that it's non-delegable," Taylor said. "That's an entirely different provision, and this provision is silent as to that."

The court's judges appeared to challenge Taylor's arguments at times, citing sections of the city's rules regarding the requirements of property owners.

One section, for example, directs property owners to have liability insurance. Associate Judge Leslie Stein of the New York Court of Appeals questioned why that would be included if the landlord wouldn't have exclusive liability in those cases.

"Why wouldn't it have said that the tenant, or the owner, or whoever is responsible for snow removal is responsible for insurance?" Stein said.

The Court of Appeals will likely hand down a decision in the case next month.

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