Icey sidewalk/credit: kolt_duo/Shutterstock.com

Building owners in New York City can't escape a duty to keep sidewalks clear from snow and ice by shifting that responsibility to their lessee by claiming to be an "out-of-possession landlord," the New York Court of Appeals wrote in a decision Thursday.

The state's high court, in a unanimous decision, ruled that a section of local law in New York City did not allow landlords to escape liability for those injuries by placing the burden on tenants.

"While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-210," Associate Judge Jenny Rivera wrote.

The litigation is the result of an incident from more than a decade ago, when Xiang Fu He slipped and fell on ice in front of where he worked on Flushing Avenue in Brooklyn. His employer, SDJ Trading, had leased the building from Troon Management.

He later sued Troon Management over the incident, claiming that the company should be held liable because the sidewalks were not cleared of ice.

He was represented before the Court of Appeals by Kenneth Gorman, a solo practitioner from Manhattan. Gorman was not immediately available to comment on the decision Thursday.

Troon Management argued that it was off the hook for the incident because it included a provision in the lease with SDJ that required the lessee to keep the sidewalk "clean and free from ice [and] snow."

The company had moved to throw out the lawsuit over that part of the lease, and the fact that it was an out-of-possession landlord, which is a building owner that essentially steps aside and cedes control of the property to the tenant.

According to legal experts, those landlords have historically not been held liable to employees of a lessee or other third party for personal injuries caused by unsafe conditions at the property because they've relinquished control to their tenants.

But in the case of He's injury from slipping on the sidewalk, Troon Management can't escape liability, the Court of Appeals wrote.

That's because of a rule enacted in New York City in 2003 to transfer the liability of unsafe sidewalks from the city to adjoining property owners. The city enacted the law to, essentially, shift that responsibility to landlords.

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."

Rivera wrote that landlords, out-of-possession or not, can't delegate that duty to whoever's leasing the building from them.

"We agree with [He] that [Troon Management] [is] subject to the nondelegable duty imposed by section 7-210, which exposes [it] to potential liability for injuries allegedly caused by the[] failure to properly remove snow and ice from the sidewalks abutting [ts] property as alleged in the complaint," Rivera wrote.

That interpretation is supported by a plain reading of the law in New York City, Rivera wrote.

There were questions during arguments before the high court last month about whether out-of-possession landlords could escape the definition of being an "owner" if they ceded control of the property to the tenant. According to the Court of Appeals Thursday, they cannot.

"Read in context, the phrase 'owner of real property' is clear and unambiguous and cannot be read to exclude out-of-possession landowners, and so there is no need to resort to legislative history," Rivera wrote.

While the Court of Appeals based its decision on a plain reading of the statute, it also said the legislative history of the measure, along with accompanying rules, supported their conclusion.

One section of law in New York City, approved simultaneously with the provision at issue in He's case, directs property owners to purchase liability insurance, for example. That shows that city lawmakers intended for liability to rest with the landlord, not the tenant, regardless of what's included in a lease, Rivera wrote.

"There would be no need to impose a requirement to carry insurance if, as defendants argue, section 7-210 did not impose both a duty and civil liability upon an out-of-possession landowner," Rivera wrote.

That doesn't mean the landlord is guaranteed to ultimately foot the bill for such an injury. Rivera wrote that landlords could seek to have their tenants indemnify them for the costs imposed by such a liability if they've agreed to maintain the property in their absence.

The decision was a reversal from a ruling handed down last year by the Appellate Division, First Department, which held that, because Troon was an out-of-possession landlord, it couldn't be held liable for He's injuries.

Troon was represented before the Court of Appeals by Scott Taylor, an attorney from Rosenbaum & Taylor in White Plains, New York. Taylor was not immediately available for comment Thursday.

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