In New York City, a sidewalk is the responsibility of the owner of the abutting property. It is the private landowner who is responsible for making sure the sidewalk is free from defects and safe for pedestrians to walk upon.

There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.

What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?

The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."

Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.

-Matthew Lombardi, Associate Attorney