On Sept. 13, 2018, following the Appellate Division, First Department’s unanimous decision dismissing the plaintiff’s complaint, the Court of Appeals granted leave to appeal to the plaintiff in He v. Troon Management. Plaintiff Xiang Fu He was injured when he slipped and fell on ice on the public sidewalk abutting his employer’s leased premises. Unable to sue his employer, He brought suit against the out-of-possession landlord Troon Management. Citing an owner’s non-delegable duty under Administrative Code §7-210, the lower court denied summary judgment. The First Department reversed, however, on the grounds that the defendants were out-of-possession landlords and the plaintiff slipped on a transient condition that does not constitute a structural defect. At issue is whether an out-of-possession landlord has a non-delegable duty under Administrative Code §7-210 where the condition complained of involves snow and ice.
Historically, an out-of-possession landlord who relinquished control of the premises and was not contractually obligated to repair unsafe conditions, would not be liable to employees of a lessee or other third-parties for personal injuries caused by an unsafe condition existing on the premises. Rivera v. Nelson Realty, 7 N.Y.3d 530, 534 (2006). If the out-of-possession landlord retained a right to re-enter to inspect or repair, however, its reservation of rights could give rise to liability if the injured party was injured in an area over which the landlord retained a right to repair and the alleged defect constituted a design or structural defect that is contrary to a specific statutory safety provision. Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 569 (1987). Traditionally, transient conditions, such as snow and ice alone, could not give rise to liability against an out-of-possession landlord with a mere right of re-entry. Thus, violation of a specific statute, which constitutes a structural or design defect, is the sine qua non of a claim against an out-of-possession landlord. Devlin v. Blaggards III Rest., 80 A.D.3d 497 (1st Dep’t 2011), lv. den’d 16 N.Y.3d 713 (2011).
With the law respecting out-of-possession landlords being settled, in 2003 Administrative Code §7-210 was enacted. Administrative Code §7-210 was intended to shift liability “for injuries resulting from defective sidewalks from the City to abutting property owners.” Roman v. Bob’s Discount Furniture of NY, 116 A.D.3d 940, 941 (2d Dep’t 2014). “Another intent of the new sidewalk law was to address an anomaly in the prior statutory scheme, which ostensibly required property owners to maintain the sidewalks abutting their properties in good repair, but imposed no tort liability for their passive failure to do so.” Ortiz v. City of New York, 67 A.D.3d 21, 26 (1st Dep’t 2009), rev’d on other grounds, 14 N.Y.3d 779 (2010). The purpose of the sidewalk law, therefore, “was to encourage owners to comply with their pre-existing obligations under Administrative Code §§16-123(a) and 19-152(a).” Id.
Although broadly worded, because it must be narrowly construed, interpreting Administrative Code §7-210 has kept the courts busy. For example, in deciphering what constitutes a “sidewalk,” a term that is not defined in §7-210, courts have turned to Administrative Code §19-101 and held that a property owner is responsible for maintaining the area between the property line and the curb. Alleyne v. City of New York, 89 A.D.3d 970, 971 (2d Dep’t 2011). Courts have also confirmed that the City retains responsibility for maintaining certain features and instrumentalities on the sidewalk including tree wells and the 12-inch area around signposts and hydrants. Vucetovic v. Epsom Downs, 10 N.Y.3d 517 (2008). An integral aspect of these decisions is the fact that Administrative Code §7-210 was not intended to supersede the duties imposed under pre-existing regulations. Id. at 521 (“7-210 ‘mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123’”).
Significantly, the word “owner” is not defined in Article 7 (addressing the liability of the City), Article 16 (dealing with sanitation) or Article 19 (addressing sidewalk and street maintenance). Lai-Hor Ng Yiu v. Crevatas, 33 Misc. 3d 267, 270 (Sup. Ct. Kings Co. 2011), aff’d Ng Yiu v. Crevatas, 103 A.D.3d 691 (2d Dep’t 2013). “Dictionary definitions of what constitutes an owner encompass both one who has the fee or title to property as well as the broader concept of one who has a right to occupy and use property.” Id. While courts should construe a statute so as to give effect to the plain meaning of the words used, it is equally important in interpreting a statute that a court should attempt to effectuate the intent of the legislature. Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 207 (1989). Thus, in interpreting the word “owner,” the pre-existing obligations set out in Administrative Code §16-123 are pertinent.
Unlike Administrative Code §7-210, which exclusively uses the word “owner,” Administrative Code §16-123 requires that “every owner, lessee, tenant, occupant, or other person, having charge of any building” remove snow and ice from the sidewalk. Nothing in the legislative history or case law suggests that the owner’s duties are concurrent with a tenant’s duty to clear the sidewalk of transient conditions where the tenant is in possession and has charge of the maintenance obligations, for example, under a lease. On the contrary, in determining whether an owner’s duty under §16-123 may be considered non-delegable, it is noteworthy that before §7-210 was enacted both the First and Second Departments held that a landlord would not be vicariously liable for its tenant’s violation of Administrative Code §16-123 where the tenant had removed snow from the sidewalk. Crudo v. City of New York, 42 A.D.3d 479 (2d Dep’t 2007); Feiler v. Greystone Bldg. Co., 302 A.D.2d 221 (1st Dep’t 2003). Thus, the duties set out under Administrative Code §16-123 do not merely apply to the record owner and do not impose a non-delegable duty on the property owner for snow and ice remediation.
In addition, courts have undermined the notion that the record owner is automatically liable under Administrative Code §7-210. Indeed, relying on the Court of Appeals’ decision in Espinal v. Melville Snow Contractors, 98 N.Y.2d 136, 141 (2002), both the First and Second Departments have found that the duties inscribed in Administrative Code §7-210 will apply to a tenant where the tenant exclusively maintains the building. Hsu v. City of New York, 145 A.D.3d 759, 760 (2d Dep’t 2016); Abramson v. Eden Farm, 70 A.D.3d 514, 514 (1st Dep’t 2010).
In interpreting Administrative Code §7-210 against the background of an out-of-possession landlord’s ownership, the First Department has consistently held that snow and ice is not a structural defect. See Fuentes-Gil v. Zear, 163 A.D.3d 421, 422 (1st Dep’t 2018). While the Second Department has not specifically addressed this issue, it has a long history of dismissing claims against out-of-possession landlords where, as here, the alleged defect is not structural in nature. Hunting Ridge Motor Sports v. Co. of Westchester, 80 A.D.3d 567 (2d Dep’t 2011); Yadegar v. Int’l. Food Mkt., 37 A.D.3d 595 (2d Dep’t 2007). And with respect to snow and ice in particular, the Second Department has consistently dismissed claims against out-of-possession landlords. Vicchiarelli v. Cold Spring Hills Realty Co., 164 A.D.3d 542, 543 (2d Dep’t 2018). Perhaps the best bellwether of the Second Department’s stance is its decision in Paperman v. 2281 86th St., 142 A.D.3d 540 (2d Dep’t 2016).
In Paperman, the plaintiff slipped and fell on a sidewalk in front of defendant 2281 86th Street’s building which had been leased to defendant EZ Corner. The plaintiff settled with the tenant and proceeded to trial against the out-of-possession landlord. The trial court allowed the landlord to submit evidence of EZ’s negligence to the jury. Finding for the landlord, the jury dismissed the plaintiff’s complaint. The plaintiff appealed citing to the non-delegable duty under Administrative Code §7-210. The Second Department affirmed the jury’s dismissal of the complaint. While not explicit, had the Second Department agreed that the out-of-possession landlord’s duty under Administrative Code §7-210 was non-delegable, such that the landlord was liable notwithstanding the tenant’s obligations where the condition is snow and ice, the court would not have affirmed the jury’s finding.
In his brief to the Court of Appeals, He argues that the First Department’s decision to dismiss claims for transient conditions such as snow and ice against an out-of-possession landlord, conflicts with Administrative Code §7-210. But in so arguing, He relies entirely on Administrative Code §19-152 which defines structural sidewalk defects. By ignoring Administrative Code §16-123, He focuses on the word “owner” in Administrative Code §7-210 and court decisions that have held that an owner’s duty to maintain the sidewalk is nondelegable when dealing with structural defects under Administrative Code §19-152. Reyderman v. Meyer Berfond Trust #1, 90 A.D.3d 633 (2d Dep’t 2011). As discussed above, however, the language of Administrative Code §16-123 is broader than that of Administrative Code §7-210 and mandates that a lessee having charge of the sidewalk clear snow and ice. Because the legislators did not intend to abrogate duties set out under regulations such as Administrative Code §16-123, the First Department’s decision dismissing He’s complaint comports with the legislative intent of Administrative Code §7-210 and a possessor’s pre-existing duties under Administrative Code §16-123.
He v. Troon has not yet been scheduled for oral argument. But to find, as He urges, that an out-of-possession landlord has a non-delegable duty to clear snow and ice under Administrative Code §7-210, the Court of Appeals would have to ignore the legislative intent of §7-210, the pre-existing duties set out in the plain language of Administrative Code §16-123 and binding precedents that have limited an out-of-possession landlord’s duty to remedy transient conditions. Indeed, the court would have to require that owners remain in possession simply to remedy transient conditions. Because the First Department’s decision balances the precedents that have defined an out-of-possession landlord’s duties, with the legislative intent of Administrative Code §7-210, the First Department’s decision should be affirmed.
Lisa L. Gokhulsingh is an appellate attorney at Gannon, Rosenfarb & Drossman.