New York’s highest court, the Court of Appeals, recently held that the owner of the adjoining property has the non-delegable duty to maintain the sidewalks free and clear of snow and ice. See He v. Troon Management , 2910 NY Slip Opinion 07643, October 24, 2019.
Mr. He slipped and fell on a public sidewalk in front of his business premises. He slipped due to snow and ice. Mr. He filed suit against the landlord. In turn, the landlord claimed that it was not liable in that the building was leased to Mr. He’s employer, and the lease obligated the employer to maintain the sidewalk including the clearance of snow and ice. The issue before the court was whether the landlord has a non-delegable duty to Mr. He and whether Mr. He is entitled to recover from the owner.
The Court of Appeals squarely ruled that the adjoining premises owner has a non-delegable duty to keep the sidewalk clear of hazards, including snow and ice. Administrative Code of the City of New York section 7-210 shifts the duty of maintaining the sidewalks from the City to the adjoining property owner in certain circumstances, such as where the property is commercial, such as this instance.
The owner sought to impose the common law “out of possession” land owner defense to the effect that out of possession owner can contract-out its maintenance obligations to the lease of the property. Although an owner can shift the maintenance and work obligations to another, such as the tenant or a maintenance company, it cannot shift its duty and liability for failure to carry-out its obligations.
This decision firmly establishes a right of recovery for an innocent person injured on a sidewalk. Under the owner’s defense, Mr. He would have been left without a recovery.
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