Ira Brad Matetsky in Building Operations on December 17, 2019
Co-op and condo boards cannot afford to forget one of the more curious aspects of running a building in New York City: the city owns most of the sidewalks, but the city isn’t responsible for taking care of most of the sidewalks.
Since 2003, owners of real property adjoining a sidewalk – including co-op and condo boards, but excluding owners of one-, two-, and three-family homes – are responsible for maintaining the sidewalk in a “reasonably safe condition.” This means they must “install, construct, reconstruct, repave, repair or replace defective sidewalk flags.” They’re also liable for personal injuries that are proximately caused by a failure to maintain the sidewalk, including the removal of snow and ice. And they’re required to purchase liability insurance for personal injuries caused by their failure to maintain sidewalks.
Although some property owners challenged the constitutionality of the legislation after it was enacted, the courts have upheld it. Most recently, in a case decided in October 2019, New York’s highest court, the Court of Appeals, interpreted the law as imposing a non-delegable duty of sidewalk maintenance on the adjoining property owner. This means that the property owner may be found liable to an injured person even when the owner has leased the property to a third party, is out of possession, and relies on the tenant to maintain the sidewalk. In the context of cooperatives or condominiums, this means that boards bear ultimate responsibility for the sidewalk maintenance – even if day-to-day responsibility has been delegated to a contractor or to the building’s staff under supervision of the managing agent.
“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,” Associate Judge Jenny Rivera wrote in the unanimous decision.
The litigation is the result of an incident when Xiang Fu He slipped and fell on ice in front of his place of employment in Brooklyn, which had leased the building from Troon Management. He sued Troon, claiming the company should be liable because the sidewalks were not cleared of ice. Troon argued that it was off the hook for the incident because a provision in the lease with He’s employer required the lessee to keep the sidewalk “clean and free from ice [and] snow.” The Court of Appeals was not persuaded.
With winter weather bearing down, now is the time for boards to take proactive steps. Boards should monitor to ensure that the sidewalks outside their properties are being properly maintained, including the removal of snow and ice during and after storms. Boards should also ensure that their agreements with managing agents or maintenance contractors contain appropriate indemnification provisions and insurance requirements so that if someone is injured due to a fall on the sidewalk, the costs will not be borne by the shareholders or unit-owners. Finally, board members should also confirm that their cooperative’s or condominium’s own insurance protection, including both the scope and limitations of liability, is sufficient.
Ira Brad Matetsky is a partner at the law firm Ganfer Shore Leeds & Zauderer.
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