New York's Cooperative and Condominium Community

Habitat Magazine October 2020 free digital issue

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ARCHIVE ARTICLE

Slip, Slidin

Good Humor trucks that seem to circle around the block incessantly; dog owners who won't clean up after their canines; delivery men barreling down the sidewalk with cartons of chow mein. Already there are a host of quality-of-life headaches just waiting to assail homeowners at the edge of their stoops. And if the mayor has his way, there will be another, more costly, problem.

This fall, the city council is expected to take up Mayor Michael Bloomberg's proposal to transfer the financial burden of sidewalk liability claims to the city's private property owners. In short, to make co-op and condo owners — and anyone who owns a building with more than three families — liable if someone trips on their sidewalk and suffers an injury.

For cooperative and condominium owners, "It's the exception rather than the rule now, paying out for slip-and-fall cases," says Warren Coster, an attorney who handles tort claims for insurance companies. "This legislation will be a boon to the city of New York, because they are going to be able to transfer liability to the landowner. And someone is going to have to be responsible for making up the difference in settlement awards that the city is paying out now, and there is only one way that can go — to the co-ops and condominium insurers."

According to the mayor's corporation counsel, the city paid out more than half-a-billion dollars in tort claims last year; of that number, about $37.5 million went to slip-and-fall or sidewalk liability claims. In 1978, New York City paid out $21 million in tort payments. The statistics are sobering, anyway you read them. More than 14,000 personal injury claims are filed against New York City each year and 9,000 lawsuits are started. And right now, the city has 47,000 pending lawsuits.

"The whole concept of accountability is crazy," complains Lawrence Kahn, an attorney with the city's corporation counsel. If someone falls on a sidewalk, "even while they may sue the adjacent property owner, the adjacent property owner is not liable unless he tried to repair [the sidewalk] and has done a negligent job — even though the landowner has an obligation under the administrative code to fix the sidewalks."

It is the same in the instance of shoveling. If a homeowner doesn't shovel, the city is held responsible for slip-and-falls. If the homeowner does shovel, but does a bad job, the homeowner can be held responsible for a personal injury claim.

According to Tom Cocola, a spokesman for the city's Department of Transportation (DOT), a homeowner has 90 days to fix a sidewalk after receiving a violation from the DOT for a broken sidewalk. If the homeowner doesn't repair it, the violation becomes a lien against the property. The building can't be sold until the problem is fixed, says Cocola, adding that in some instances, the city will step in and fix the problem itself and "back bill" the homeowner. "But in all frankness, the city tends to look at major egress violations, such as elevated flags," notes Cocola, who estimates that his department writes roughly 1,800 violations a year.

Homeowners and tenants also have an obligation to shovel their sidewalks within four hours of a snowfall, though they don't have to shovel after 9 P.M. or before 7 A.M., says Kathy Dawkins, a spokeswoman for the DOT. Summonses for not shoveling start at $50 and can go as high as $100. In 2000, the city issued 10,316 summonses for unshoveled sidewalks abutting private property.

"Just because someone didn't shovel and did get fined, that does not automatically translate into liability if someone slips and falls," notes Jonathan Rosenbloom, the managing editor of City Law, a bi-monthly magazine published by the nonprofit Center for New York Law. "Courts consistently hold that where the only evidence of fault is a violation of shoveling ordinance, that's not enough to show the homeowner is liable."

In 1995, the center published a paper on sidewalk liability noting that under the city's municipal home rule law, "the city may not transfer to abutting property owners its liability for failure to maintain the public sidewalk," a law that was twice affirmed by the New York State Court of Appeals.

Kahn says that the mayor's current proposed legislation to hold property owners liable for the abutting sidewalks is simply an effort to close the legal loophole between responsibility and accountability. "Our [proposed] law says that if the sidewalk is not in fact responsibly safe that the landowner, who has an obligation to fix the defect currently, would, if he failed to comply, be liable in a personal injury case. And we think that makes sense, because (a) it would create an incentive for a landowner to comply with his administrative duty and (b) if a person is injured he could be compensated by the person who failed to comply with that duty."

He adds: "We're just trying to build some logic onto that law, ensuring that if the landlord fails to comply, he is held liable in a personal injury case."

But if homeowners are going to be held liable for all accidents on the sidewalks that result from their negligence to their duty to keep the sidewalks clear, what will happen to insurance premiums? While Kahn maintains the increase in insurance premiums would be "negligible," others disagree.

Premiums have already gone up in the wake of the events of September 11, says Arthur Weinstein, vice president of the Council of New York Cooperatives and Condominiums, who cited the example of a 20-unit walk-up co-op in the West 50s that is paying a third more in insurance premiums over last year. "It will certainly not help the situation if the city decides to shift all of the burden on to the co-ops and condominiums."

"It would add significantly to the cost. There is no question about it," agrees Warren Heck, chairman and CEO of Greater New York Mutual Insurance. "Trip-and-fall claims are the most common claims. Premiums would likely have to increase. Certainly."

How high they might go is difficult to track, however, since claims against buildings vary around the city. One Manhattan managing agent speculates that her company, which manages 32 properties, averages five slip-and-fall claims a year, per building.

On the other hand, others report different results. "We manage one property in Riverdale with a lot of sidewalk area and we get sued on a regular basis; but in Manhattan, where the sidewalks are far worse, it doesn't seem to happen," notes Don Wilson, president of Blue Woods Management. Tom Pasquazi II, executive vice president at Orsid Realty, says his company handles a maximum of five claims a year for its 85 properties, paying roughly $2,000 to $10,000 per claim.

Rosenbloom notes that even if the mayor's legislation passed the city council, which is expected to take up Bloomberg's proposal in the fall, there will probably be court challenges. And even if the legislation survives those challenges, there is no reason to predict a wholesale increase in rates.

"The only thing the mayor's proposal would do would exempt the city from liability from trip-and-fall, leaving the owners as the sole source of recourse for people who suffer trips-and-falls," observes attorney Bruce Cholst, a partner at Rosen & Livingston. "I don't know if this ordinance, if it passes, would have any direct impact on liability and insurance premiums. They are a prime target as a defendant in trip-and-fall lawsuits in any event."

"In this day and age, where all properties in New York City are undergoing complete reevaluation of their insured values as well as their premiums, these insurance companies are going to use any excuse and any added exposure to increase rates, and it's not going to be minor," warns David Khazzam, vice president of PRC Management. "No matter how clean the sidewalks are, no matter how new they are, I hate to say it, but people do [start lawsuits] for a living."

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