Scott E. Mollen

Maintenance of Sidewalks—Administrative Code of City of New York Imposes Nondelegable Duty Upon Certain Property Owners To Maintain Sidewalks—NY Court of Appeals Held There is no Exception for Out-of-Possession Landowners—Obligation Applies Notwithstanding Owner's Transfer of Possession to Lessor or Maintenance Agreement with a Non-Owner

Section 7-210 of the Admin. Code of the City of New York (§7-210) "unambiguously imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition." A "subject owner is liable for personal injury claims arising from the owner's negligent failure to remove snow and ice from the sidewalk….". The Code does not contain an exception for "out-of-possession landowners." The New York Court of Appeals (court) held that "the duty applies with full force notwithstanding an owner's transfer of possession to a lessee or maintenance agreement with a nonowner." Thus, the defendants were not entitled to summary judgment based "solely on the owners' out-of-possession status."

A plaintiff had sued, inter alia, owners of a New York City property for personal injuries arising from an alleged fall on a sidewalk. The plaintiff alleged that ice that had accumulated "due to defendants' negligent maintenance of the abutting sidewalk owned by the City of New York."

The trial court denied "the defendants' motion for summary judgment dismissing the complaint, rejecting their arguments that out-of-possession landowners are not liable for personal injuries based on negligent sidewalk maintenance," and, the lessee had agreed to maintain the abutting sidewalks. The Appellate Division reversed, granted the defendants' motion for summary judgment and dismissed the complaint, on the grounds "that the out-of-possession landowners had no contractual obligation to maintain the sidewalks and the presence of snow and ice does not constitute a significant structural or design defect for which such owners are responsible…."

The plaintiff contended that with certain exceptions inapplicable here, §7-210 "displaces the applicable common law, imposing a nondelegable duty of care and shifting all liability for sidewalk—defect—related personal injuries from the city of New York to owners of abutting property, like defendants." The defendants argued that "when a lessee has agreed to keep the premises in good repair, as in this case, an out-of-possession landowner retains liability only for structural defects inside the premises, whereas the lessee assumes liability for transient conditions, including those arising from sidewalk maintenance."

The court held that the defendant owners were "subject to the nondelegable duty imposed by (§7-210), which exposes them to potential liability for injuries allegedly caused by their failure to properly remove snow and ice from the sidewalks abutting their property…and that triable issues of fact preclude summary judgment for defendants."

Section 7-210 provides in relevant part "[i]t shall be the duty of the owner of real property abutting any sidewalk…to maintain such sidewalk in a reasonably safe condition" and that "[n]otwithstanding any other provision of law, the owner of real property abutting any sidewalk…shall be liable for any injury to property or personal injury…proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." That statutory language is inapplicable to "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…."

The court stated that the defendants essentially ask the court to "extend the out-of-possession landowner rule, under which landowners who have contracted out the responsibility for maintenance of their property do not assume liability for a breach of that duty, to a duty to maintain premises owned by the City." The court opined that such interpretation of §7-210 "disregards our first-order rule that the 'text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to it's plain meaning…."

The court believed that the Code "could not be clearer." Section 7-210 "applies to every 'owner of real property abutting any sidewalk'" and does include an exception for "those owners who are out-of-possession." Moreover, §7-210 excluded certain owner-occupied properties and if the City Council "meant to exclude a class of owners, it knew how to do so…."

The court cited other provisions of the Code that support its conclusion. For example, §7-211, enacted into law the same day as §7-210, requires owners of real property subject to §7-210 (b) to maintain personal injury and property damage liability insurance for injuries approximately caused by the failure to comply with the duty of maintenance under §7-210. Section 7-211 provides that the City will not be liable for such injury "if the owner failed to carry insurance as required by this section."

The court reasoned that there would be no need to require insurance if, as defendants argue, §7-210 "did not impose both the duty and civil liability upon an out-of-possession landowner." Additionally, the City Council "would have extended the insurance mandate in (§7-211) to those with an interest in the premises other than a freehold."

The court also stated that since the phrase "owner of real property" was "clear and unambiguous and cannot be read to exclude out-of-possession landowners, …there is no need to resort to legislative history." However, it stated that the legislative history confirmed that "owner" means "all owners, regardless of their out-of-possession status and whether the owner has contracted with the lessee or another to keep the sidewalk in reasonably safe condition."

The court further explained that "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. This interpretation of the Code not only is mandated by the language and supported by the legislative history, but also promotes the City Council's intent to place the duty squarely on the shoulders of those in the best position to maintain sidewalks in a reasonably safe condition and to insure against loss. Otherwise, if owners may delegate this responsibility and attendant liability, then they have no incentive to ensure that the delegatee is competent and properly insured." The court noted that the argument that landowners could avoid liability by contracting with lessees to maintain sidewalks, "conflates a private covenant to maintain and repair property between parties to a leasehold agreement and whether that obligation may be delegated under the common law, with the duty imposed by (§7-210)."

Additionally, the court noted that §7-210 does not prevent a landowner from entering into maintenance agreements with tenants and third parties. Owners may "shift the work of maintaining the sidewalk to another….". However, owners "cannot shift the duty, nor exposure and liability for injuries if the cause is by negligent maintenance, imposed under (§7-210)."

The court further explained that although "a landowner or tenant in possession may be attuned to the problems on the ground and careful to timely address defective conditions,…the City Council appears to have determined that a landowner who is held responsible for personal injuries resulting from negligent maintenance has every reason to hold those responsible for maintenance to the duty of care mandated under (§7-210) and require them to adequately insure against personal injury and property damage." Moreover, "if litigation ensues, the landowner generally has an indemnification action against a tenant or lessee who covenants to maintain the property." The court explained that the defendants' objections to the policy reflected by §7-210 are "best addressed to the City Council, which, at this juncture, has chosen to impose liability on owners of land abutting City sidewalks." It emphasized that "courts 'do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers….'"

Accordingly, the court held that triable issues of fact exist with respect to the manner in which the action occurred and the presence of snow ice and that precludes summary judgment for the defendants. Finally, it stated that §7-210 "abrogates the common law, imposes a nondelegable duty of care, and shifts civil liability from the City to out-of-possession owners like defendants."

Xiang Fu He v. Troon Management, Court of Appeals, New York State, Case No. 73, decided Oct. 24, 2019. Opinion by Judge Rivera. Chief Judge DiFiore and Judges Stein, Fahey, Garcia, Wilson and Feinman concur.

Landlord-Tenant—Tenant's Subletting Did Not Rise to Incurable Violation—Tenant Collected Only $136.25 Above the Legal Rent—21 Guests During an 18-Month Period—Subletting Was De Minimus—Insufficient To Warrant Forfeiture of Long-Term Regulated Tenancy—Tenant Ceased Subletting Approximately One Year Before Landlord Served Notice to Cure—Tenant's Conduct Did Not Constitute Commercialization of the Apartment and Profiteering

A landlord appealed from a final trial court judgment which awarded possession to a tenant in a summary holdover proceeding.

The tenant had collected "an excess of $136.25 in total from 21 guests over an 18-month period…." The trial court and the Appellate Term (court) found such conduct to be "de minimus" and "insufficient to warrant the forfeiture of a long-term [21-year] regulated tenancy…." The tenant had "ceased subletting nearly a year before landlord served the notice to cure… and had complied with all of the demands in landlord's notice to cure…."

The court emphasized that it did not "condone tenant's conduct." It observed that "the other building residents did not bargain to share the building where they made their homes with transient strangers of unknown character and reputation, drawn to the building from all over the world by Internet advertising placed by tenant, conduct that in an appropriate case warrants termination of the tenancy without any right to cure…. We simply hold that a fair interpretation of the evidence supports that determination that tenant's conduct in this particular case did not rise to an incurable violation."

261/271 Seaman Ave. LLC v. Jordaan, Appellate Term, 1st Dept., Case No. 570436/19, decided Oct. 24, 2019, Ling-Cohan, J.P., Gonzalez, J. All concur.

Land Use—School is Not Immune from Local Zoning Regulation

Petitioners sought a preliminary injunction restraining a school district from continuing to construct a six-foot-high fence around three sides of a school (project). Petitioners also sought an order declaring that the school district is not "blanketly and absolutely immune from local zoning considerations" and that local zoning regulations with respect to the school district apply when there is no conflicting NYS Education Law provision or State Education Department (SED) Regulation addressing a particular issue.

The school district had received SED authorization to build a perimeter fence. The subject village had contacted the SED and objected to the project. The village asserted that the project violated a local village code (Code) because the project contemplated erection of a six (6) foot fence and the Code limited the height of the fence to four (4) feet.

The SED had advised the school district that although the SED had approved the fence, "[t]here may be additional local zoning approval required" and the SED approval "was not intended to" take a "position as to whether or not local zoning approval was required under the circumstances."

The salient issue was whether the school district correctly asserted that the SED "is vested with exclusive jurisdiction concerning matters related to school construction" and therefore, whether the school district "has no obligation to seek a permit from the Village for the construction of the six (6) foot perimeter fence…." Although the school district had argued that the fence was necessary based on "security concerns," the court noted that the proposed fence would not "completely enclose" the school and access to school property was still possible. The court found that there was no "credible showing" by the school district that stopping the fence construction "would pose a significant safety risk."

An architect had submitted an affidavit stating that "he had never in the past applied to a village for a building permit to commence a school construction." The court viewed such assertion as "not by itself dispositive as to whether a Village permit is at the very least required to be sought, especially in light of the SED letters." The SED had advised the school district that its approval of the project "is separate and distinct from any local zoning approval which may still be required" and that the district that it is "advised to resolve any potential zoning issues related to this project directly with the Village…." The SED had also "suggest[ed]" that the school district consult with the village as to additional zoning approvals.

The court noted that SED letters, although not a "directive", "clearly" demonstrate that "some local approval may be necessary, and recommends adherence to the local zoning process, in the event that an additional approval is necessary, i.e. that SED's jurisdiction is not exclusive." One SED letter cited an Appellate Division decision which held that "[r]eliance on cases granting schools immunity from all zoning regulation is misplaced." That decision cited a Court of Appeals decision.

The prior Appellate Division decision explained that it never intended to "render municipalities powerless in the face of a religious or educational institution's proposed expansion, no matter how offensive, overpowering or unsafe to residential neighborhoods a use might be," and denied "the existence of any conclusive presumption of an entitlement of an exemption from zoning ordinances for schools."

The subject court noted that although the authorities cited by the village may be distinguishable on the facts, the "[g]ravity of the issues of all is identical, i.e., that the state does not have exclusive jurisdiction over matters relating to school real estate, and…local zoning bodies may also have jurisdiction."

The court concluded that the "law, facts, and circumstances" support the petitioners' position that they would likely succeed on the merits. Furthermore, the balancing of the equities also favored the petitioners. The court explained that "[l]ocal governance is an underpinning of our democracy. Localities enact statutes that serve their residents and provide them with a lawful and orderly means of governing concerning local matters. Despite an abundance of state and federal laws which necessarily impact the lives of local residents, they must be assured and confident that their local self-governance is not impeded and that they can meaningfully participate in the matters that significantly touch their lives, as does this school-related matter."

Additionally, the court reasoned that the fact that the school commenced construction of the fence should not be used as a "sword to prevent the halting of construction until a local permit is sought." Here, construction began with full knowledge that the respondents had not sought a local zoning permit and that the SED had recommended that they do so.

Accordingly, the court issued a preliminary injunction enjoining construction of the fence and declared that the school district is not "blanketly and absolutely immune from local zoning considerations" and that local zoning considerations apply with respect to the school district "when there is no conflicting New York State Education Law provision or State Education Department Regulation relative to a particular issue." The injunction will remain in place until the respondents apply to and obtain a determination by the local zoning body.

Cuomo v. The East Williston Union Free School Dist., Supreme Court, Nassau Co., Case No. 611616/19, decided Oct. 4, 2019, Gianelli, J.

Scott E. Mollen is a partner at Herrick, Feinstein.