In New York City, personal injury actions arising from accidents caused by defective sidewalks are governed by §7-210 of the Administrative Code, often referred to as the Sidewalk Law of 2003. The law was intended to shift liability for improperly maintained sidewalks from the City of New York, which had borne that responsibility under the common law, to abutting commercial landowners. Because hazardous sidewalks are, unfortunately, all too common in the city, the law has proven to be extremely significant for tort litigation, and has been the subject of frequent interpretative disputes.

The Court of Appeals has addressed issues arising from the interpretation of the statute three times since its enactment: in Vucetovic v. Epsom Downs, 10 N.Y.3d 517 (2008); Sangaray v. West River Associates, 26 N.Y.3d 793 (2016); and, most recently, He v. Troon Mgmt., __ N.Y.3d __, 2019 WL 5429374 (2019). The He case, which was handed down on Oct. 24, 2019, held that out-of- possession landowners cannot shift the duty to maintain their sidewalks to their tenants. In this column, we will survey the Court of Appeals' case law concerning the Sidewalk Law, and explain where the law now stands following He.

Sidewalk Law of 2003

At common law, the City of New York was responsible for maintenance of sidewalks—a duty it had statutorily narrowed by enacting a prior written notice requirement. The Sidewalk Law shifted this responsibility from the City of New York to most kinds of abutting landowners. (The city remains liable in cases where the abutting property is an owner occupied one, two, or three family home, and is used exclusively for residential purposes). The law provides, in relevant part:

a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.

b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition….

See NY ADC §7-210.

At the same time it enacted this provision, the City Council also enacted §7-211, which required that property owners subject to liability under §7-210 carry liability insurance.

'Vucetovic'

The Court of Appeals first addressed the Sidewalk Law in Vucetovic v. Epsom Downs, 10 N.Y.3d 517(2008). Vucetovic was a case about the scope of a landowner's duty under the provision. The law does not specify what area constitutes the "sidewalk" that landowners are required to maintain. The Court of Appeals was called upon to resolve that ambiguity.

The plaintiff in Vucetovic had been injured when he "stepped into a tree well and tripped on one of the cobblestones surrounding the dirt area containing a tree stump." He contended that "tree wells should be considered an integral part of the sidewalk for purposes of section 7-210, such that [the defendant] may be held liable for the failure to maintain the tree well in a safe condition." Id. at 521. He pointed to another provision of the Administrative Code, which described a sidewalk as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." If this definition were adopted, he argued, tree wells would be a part of the sidewalk, because they fall within the area between the curb and buildings.

The court acknowledged that the case presented a close question, but rejected plaintiff's argument. It noted that, because the statute had been enacted in derogation of the common law, it needed to be strictly construed (quoting from Blue Cross & Blue Shield of N.J. v. Philip Morris USA, 3 N.Y.3d 200, 206 (2004)). Using this background presumption for interpretative purposes, it held as follows:

Given the statutory silence and the absence of any discussion of tree wells in the legislative history, it seems evident that the City Council did not consider the issue of tree well liability when it drafted section 7-210. If the City Council desired to shift liability for accidents involving tree wells exclusively to abutting landowners in derogation of the common law, it needed to use specific and clear language to accomplish this goal. Id. at 522.

'Sangaray'

The Court of Appeals next addressed the Sidewalk Law in Sangaray v. West River Assoc., 26 N.Y.3d 793 (2016). That case concerned the question of whether landowners' liability was limited exclusively to accidents that took place in front of their buildings. In a number of cases before Sangaray, the First and Second Departments had read such a limitation on liability into the statute. For instance, in De Garcia v. Empire Fasteners, 57 A.D.3d 710 (2d Dept. 2008), the plaintiff alleged that two separate property owners should share in liability for her accident. One of the defendants moved for summary judgment, submitting "photographs establishing that its property did not abut the portion of the sidewalk which contained the alleged defect that the plaintiff identified at her deposition as the location of her fall."

The Second Department found that the defendant had "thus established that it did not have a duty to maintain the portion of the sidewalk where the plaintiff fell in a reasonably safe condition, and that it was therefore entitled to summary judgment dismissing the complaint insofar as asserted against it."

The First Department had reached similar holdings. See, e.g., Lorenzo v. Ortiz Funeral Home, 113 A.D.3d 528 (1st Dept. 2014) ("Since the sidewalk defect that caused the accident was located in front of the neighboring property and was not caused or created by Electro/Stellar, they did not have any obligation to repair the defect …"); Thompson v. 793-97 Garden St. Hous. Dev. Fund, 101 A.D.3d 642, 643 (1st Dept. 2012) ("The record demonstrates conclusively that defendant did not own the property that abutted the sidewalk on which plaintiff tripped and fell, and was therefore not responsible for maintaining it in a reasonably safe condition").

Sangaray repudiated this line of cases. The plaintiff in that case had been traversing a sidewalk flag that "ran from the front of a property owned by defendant West River Associates, LLC to a neighboring premises owned by defendants Sandy and Rhina Mercado." The flag began to pitch sharply downwards on the West River side of the property line, but met the next sidewalk flag, which was level, in front of the Mercado building. The plaintiff struck his toe at the expansion joint where the sunken flag met the next, level one, which was located solely in front of the Mercado building. The plaintiff argued that both property owners could be held liable, as they both had breached their statutory duties and thereby contributed to the causation of the accident.

The Appellate Division found that, because "West River did not own the property that abutted the sidewalk where plaintiff tripped and fell," it "therefore was not responsible for maintaining the sidewalk in a reasonably safe condition." Sangaray v. West River Assoc., 121 A.D.3d 602, 603 (1st Dept. 2014).

The Court of Appeals reversed the First Department. It stated that §7-210 "unambiguously imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure." The statute "does not restrict a landowner's liability for accidents that occur on its own abutting sidewalk where the landowner's failure to comply with its duty to maintain its sidewalk in a reasonably safe condition constitutes a proximate cause of a plaintiff's injuries." This holding, it reasoned, was "consistent with the purpose underlying the enactment of that provision, namely, to incentivize the maintenance of sidewalks by abutting landowners in order to create safer sidewalks for pedestrians and to place liability on those who are in the best situation to remedy sidewalk defects." Id. at 799.

'He v. Troon Mgmt.'

We turn now to He v. Troon Mgmt., __ N.Y.3d __, 2019 WL 5429374 (2019). As in Sangaray, He arose from a limitation on landowners' liability that the Appellate Divisions had read into the law. The plaintiff in the He case fell on an icy sidewalk abutting a building owned by defendant Troon Management. Prior to the date of the accident, Troon had leased the premises to a tenant, which assumed a contractual duty to maintain the sidewalk in its lease. Troon claimed that it was out- of-possession of the property, and that, as such, it had no duty to maintain the sidewalk. This duty, it claimed, rested with its tenant under the lease. The Appellate Division, First Department, accepted this argument, holding:

Defendants cannot be held liable for injuries allegedly sustained by plaintiff when he slipped on snow and ice on the sidewalk adjacent to their property, 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.

He, 157 A.D.3d 586 (1st Dept. 2018). It cited several other decisions that had reached similar holdings. See, e.g., Cepeda v. KRF Realty, 148 A.D.3d 512, 513 (1st Dept. 2017) (landowner "established that it was an out-of-possession landlord which, pursuant to its lease with the tenant…was not responsible for removing snow or ice from the sidewalk of the premises where plaintiff allegedly slipped and fell").

The Court of Appeals reversed. Quoting Sangaray, it reiterated that the statute "unambiguously imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition." That duty, the court found, is an "affirmative, nondelegable obligation." Id., *2. The statute, by its plain language, does not exempt out of possession landowners from liability, nor does it authorize them to transfer their responsibility to others. Indeed, the court pointed out, §7-211 requires property owners who are liable under §7-210 to purchase liability coverage—a requirement that would make little sense if the owner could simply disavow all statutory responsibility by lease.

This interpretation also advanced the purpose of the legislation, which was to "incentivize the maintenance of sidewalks by abutting landowners." Id., *2 (quoting Sangaray). A "nondelegable duty incentivizes owners to make decisions that optimize the safety and proper care of sidewalks, reducing harm to third parties and litigation costs." If owners could "delegate this responsibility and attendant liability, then they have no incentive to ensure that the delegatee is competent and properly insured." Id., *3.

Where Are We Now?

Following He, it is clear that a landowner cannot delegate the duty to maintain its sidewalk to a tenant or other party by contract. A landowner can require a tenant to clean or maintain the sidewalk abutting the property in a lease, and to indemnify it if there is an accident. But the primary duty to the general public rests with the landowner, regardless of the terms of the lease, and cannot be delegated. Regardless of the terms of a lease, the primary statutory legal obligation is owed by the landowner to the injured party. The Court of Appeals' holding is not limited to cases involving snow and ice—the condition the plaintiff fell upon—and extends to the failure to maintain or repair sidewalk flags as well. And as Sangaray demonstrates, whenever a landowner's breach of its duties proximately causes an accident, it can be held responsible. That is so regardless of where the accident takes place. Because there can be more than one proximate cause of an accident, it is important to remember that, in some instances, multiple defendant landowners can share liability for a particular occurrence.

A common thread that runs through all of these cases is that, when called upon to interpret the statute, the Court of Appeals has followed at least two significant overarching principles. First, it has demonstrated fidelity to the text of the statute. The provision imposes a duty upon landowners, and requires that they be held liable when the breach of that duty proximately causes an injury. The court has declined to read into the statute limitations on liability that do not appear in its text.

Second, the court has made clear that a significant purpose of the statute is to incentivize landowners to maintain their sidewalks, and thereby advance the objective of pedestrian safety. In He, the court reaffirmed that this legislative purpose provides important guidance for the interpretation of the statute.

Robert S. Kelner is senior partner at Kelner and Kelner. Gail S. Kelner and Joshua D. Kelner are attorneys with the firm.