At the behest of Major Bloomberg and in connection with the budget crisis, the City Council amended the law limiting the rights of people injured in falls on New York City sidewalks. The law became effective September 15, 2003, and affects only accidents that occurred on or after that date.

The new law makes the adjoining property owner legally liable for injuries related to a defective public sidewalk. Typical defects include potholes, raised flagstones, cracks and raised and uneven sidewalks. Additionally, the property owner is responsible for snow, ice and trash removal. Now, the adjoining property has the legal responsibility to maintain the public sidewalk in a safe and reasonable condition, which includes making repairs and keeping the sidewalk free of snow, ice and trash.

In most cases, this change positively affects the outcome in that the personal injury suit may be brought against a private insurer rather than against New York City. Generally, private insurers pay more than the City to settle an injury case, and lawsuits with private insurers move more quickly in the courts. However, on the negative side, this new law may leave some injured people without recourse, such as those who have had the misfortune to fall on a sidewalk adjoining uninsured land, such as a slum tenement or a vacant lot.

Under the prior law, the City was legally responsible for the maintenance of the sidewalks, and the adjacent-property owner had no liability unless the owner either created the condition or had a special user, such as a driveway, that caused the defect. For example, under the old law, the adjoining-property owner had no liability for a pedestrian’s fall from a six-inch hole, even where the City had issued a violation to the owner. Under the new law, the owner would be legally responsible, and the City would have no liability for any resulting injuries.

The new law has an important exception. Owners of one-, two-, or three-family homes who reside in their homes and whose homes are exclusively residential are not legally responsible. New York City remains liable in such cases. However, if the owner rents out his residence, then this exception does not apply. Furthermore, this exception does not apply to one-, two-, and three-family homes that have commercial units.

For example, it appears that a three family home that consists of a doctor’s office and two residential units (one occupied by the owner) would not fall within the exception, and the owner would be liable for related injuries. Also, a building that consists of a store at the ground level and two or three apartments would not fall in the exception. Therefore, the owner of a one-, two, or three-family home will be liable if the premises contain any commercially used units.

The intent of the law is to shift the cost of accidents to the adjoining-property owners that the City will pay fewer settlements and judgments. The City Council provided the exception for one-, two-, and three-family homes to provide some financial relief to private home owners, since the owners had been hit with a record real-estate increase of at least 18.5 percent in 2003. In essence, the shifting of personal injury liability is from the City to the owners of commercial property.

It was hoped that the new law would abrogate the much hated prior-notice law. It appears that the prior-notice law as been abrogated for cases against private-property owners, but the notice law is still in effect for cases against the City, such as those involving sidewalks adjacent to private homes.

Under prior-notice law, the City could not be held liable for a sidewalk defect unless the Department of Transportation (DOT) received written notice of the nature and location of the defect, and such notice must have been received by the DOT before the accident. The Big Apple Corp. was created by trial lawyers, at great expense, to achieve this purpose.

Big Apple annually surveys every public sidewalk in town. Cynically, the City required prior notice of potholes, but it did nothing with the information. It did not repair the defects. Sidewalk problems typically remain unchanged for years. However, despite the fact that the City did nothing with prior-notice maps, prior-notice law was strictly applied and blocked monetary recovery for many seriously injured clients.

The new law also requires that property owners carry insurance to cover accident lawsuits. However, the City shall not be responsible if the owner fails to obtain insurance.

As with all new laws, this change leaves many unanswered questions. We urge that you consult us early in the event of an accident on a public sidewalk.

Frequently asked questions about the new sidewalk law

Q: I own and reside in a two-family house. Will I be responsible if a pedestrian falls on the sidewalk in front of the house?

A: No. Owners of one-, two-, and three-family homes that are owner occupied and which are exclusively residential shall not be liable. However, it is always recommended that home owners and property carry insurance.

Q: I own a one-family home. Occasionally I do some work at home, such as answering e-mails and working on my home computer. Is my home now deemed a commercial building?

A: Probably not. Occasional work at home on evenings or weekends would not turn your home into a commercial building. But if you work out of your home on a part-time basis and maintain a separate room or suite where you have customers call or employees work, then your home may be deemed a a commercial building. For example, a tax preparer who sees clients in his home office during tax reason would take his home out of the private home exception. This would be so if you deduct part of your rent or home expenses as a business expense on your tax return. In that event, the home would not be deemed a one-family home exclusively used as a residence, and the owner would be liable.

Q: I own a one-family house where I used to reside, but I now rent it out for extra income. Will I be responsible for sidewalk accidents?

A: Yes. You are deemed a commercial owner, and you will be liable for sidewalk falls and related injuries.

Q: I was injured as a result of a fall on September 1, 2002. Is the City no longer liable?

A: No, the new law affects accidents which occur on or after September 15, 2003.

Q: Will this new law increase insurance rates?

A. Probably not. Your homeowner’s insurance should not increase because one-, two-, and three-family residences are exempt from liability, and the City remains liable as it was under the old law. Homeowners’ policies already cover sidewalk injury claims. It is doubtful that insurance for commercial properties will increase, because commercial insurance policies already cover sidewalk accidents.