The Location of a Defect is No Longer the Sole Determinant of Liability Under NYC Sidewalk Law According to the New York Court of Appeals

By Leonard G. Kamlet, Esq. and John O. Fronce, Esq.

An action is commenced against two neighboring property owners whose premises abut a public sidewalk in New York City. The actual location where the plaintiff tripped and fell is on an area of the sidewalk abutting one of the defendant's property, and not the other. The non-abutting owner claims that since the accident did not happen in front of its property, it cannot be held liable under section 7-210 of the Administrative Code of the City of New York, commonly referred to as the Sidewalk Law. This scenario, and others of a similar nature, arises frequently and case-law has been less than consistent and clear until recently when the Court of Appeals provided much needed clarification.

The Court announced in Sangaray v. West River Associates, LLC, __ N.Y.3d __, 2016 N.Y. Slip Op. 01002 (2016), that "to the extent that ... other cases ... can be interpreted as holding that only the landowner whose property abuts the defect upon which the plaintiff trips may be held liable, they should no longer be followed ...." Simply, the law is now clear that even when the accident does not occur on a defendant's abutting sidewalk, it can face liability when its failure to maintain its own sidewalk was a proximate cause of plaintiff's injuries.

Plaintiff Sangaray tripped and fell on an elevated sidewalk expansion joint located entirely in front of a property owned by the Mercados. Plaintiff commenced suit against the Mercados and neighboring property owner, West River Associates, LLC, alleging both breached their duty under the Sidewalk Law. While the sidewalk height differential at the expansion joint where plaintiff tripped was entirely in front of Mercado's property, it was caused by a depressed sidewalk flag that was mostly on West River's side of the property line. West River was granted summary judgment based on its argument that it could not be liable as the defect, i.e., the height differential at the expansion joint, was entirely on the Mercado property. The Appellate Division, First Department affirmed.

The Court of Appeals reversed, holding that the trial court failed to inquire as to whether West River breached its duty to maintain the portion of the sidewalk flag that abutted its property and, if so, whether that breach was a proximate cause of plaintiff's injuries. The Court found that while the location of the alleged defect and whether it abuts a particular property is a significant factor in determining that property owner's responsibility, that fact alone does not foreclose potential liability of a neighboring property owner for failing to maintain its own abutting sidewalk in a reasonably safe condition, when such failure constitutes a proximate cause of the alleged defect upon which plaintiff fell.

Significantly, the Court of Appeals pointed out that West River predicated its summary judgment motion solely on the fact that the expansion joint height differential was not in front of its property and offered no evidence that the condition of its own sidewalk was not a proximate cause of the accident.

In light of Sangaray, where there can be any question on the issue, a defendant seeking summary judgment must expand its evidentiary showing to negate any question that the condition of their abutting sidewalk was a proximate cause of the accident. In certain circumstances, this may well require an expert affidavit in addition to other evidence.