New York Insurance Law Blog

NYC Sidewalk Law

On behalf of Jeffrey Samel & Partners posted in Injuries on Friday, March 6, 2015.

In 2003, the New York City Council enacted §7-210 of the New York City Administrative Code. Under that statutory scheme, liability to those injured as a result of a defective public sidewalk generally shifted from the City to the abutting landowner. However, not all types of landowners are subject to this shifting of liability.

Pursuant to NYC Administrative Code §7-210(b)(i) (ii), an owner of a one-two-or three-family residential premises that is owner-occupied and is used exclusively for residential purposes does not have a statutory duty to maintain public sidewalks abutting that property. In other words, the owner of a one, two or three family home that the owner actually occupies and that does not contain a business (such as a professional office or retail establishment), would not be responsible for sidewalk defects or for the presence of snow, ice or other debris.

In such instances, liability for injuries sustained as a result of a dangerous condition of the public sidewalk remains with the municipality and does not shift to the owner of the abutting property. Exceptions to this rule include when the landowner actually created the dangerous condition, made negligent repairs thereby causing the condition, created the condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk.

Very often, plaintiffs seek to commence a lawsuit after the somewhat brief statute of limitations for claims against the municipality has expired, or when prior actual written notice cannot be proven against the City, leaving plaintiff with little choice but to seek to establish liability on the part of the abutting landowner. The most prevalent claims that attempt to place liability on an abutting landowner of a one, two or three family home include claims of a defect located on the portion of the sidewalk over which the landowner’s driveway (i.e. a “special use”) crosses and where it is claimed that the landowner made “ineffective repairs of a defect (or incomplete removal of snow or ice) that allegedly resulted in a more dangerous condition.

Most of the allegations faced by landowners for incidents that occurred on abutting sidewalks have been well litigated. There are few “gray areas” remaining or issues of first impression. Thorough legal research by knowledgeable counsel can almost always uncover legal decisions in cases involving similar facts in which the issue of liability has already been determined by the appellate courts.

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Long Arm Jurisdiction

On behalf of Jeffrey Samel & Partners posted in US Supreme Court on Tuesday, September 9, 2014.

Recently, the U.S. Supreme Court declared unconstitutional the long accepted standard used in New York to determine whether a corporate defendant is subject to general jurisdiction within the state under the test of “corporate presence” or “doing business.” In the January 2014 decision in Daimler AG v. Bauman, the Supreme Court ruled that there are three instances in which a state can exercise general jurisdiction over a corporation: (1) when the corporation is incorporated in that state; (2) when the corporation has its principal place of business in that state; or (3) “in an exceptional case” in which the corporation’s activities within the state are “so substantial and of such a nature as to render the corporation at home in that state.”

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Security Lapse Scam

On behalf of Jeffrey Samel & Partners posted in Negligent Security Defense on Wednesday, November 12, 2014.

A claim of inadequate security leading to a brutal assault, rape or even murder of an innocent victim carries with it an emotional impact that creates problems for any defense team. Such problems are made even worse when the criminal assailant turns out to be one of the security officers your client hired to protect the tenants and visitors at a particular building.

That is the task that we assumed when asked to defend a client that provided security services at an office building in midtown Manhattan. One of the security officers guarding the building during the July 4th holiday left his post in the lobby to escort a female attorney to her office, and instead, took her to a vacant area of the building where he assaulted and attempted to rape her.

After completing pre-trial discovery, we moved for summary judgment on behalf of the security company. A similar motion was made by separate counsel for the co-defendant building owner. The lower court denied the building owner’s motion as untimely, but granted our summary judgment motion. The lower court ruled that the plaintiff had not proven that the security company had prior notice of the assailant’s vicious propensities, nor had plaintiff proven that another security guard’s failure to stop the assailant from leaving his post had been a behad been en a proximate cause of the plaintiff’s injury.

The plaintiff argued against this decision on appeal. However, we were successful in obtaining a decision from the Appellate Division, First Department, in the case of Jane Doe v. Madison Third Building Companies, et al., affirming the lower court’s granting of summary judgment. The Appellate Division agreed with the arguments we made in both the summary judgment motion and on appeal that the plaintiff failed to establish both prior notice and proximate cause. Interestingly, the appellate court also upheld the lower court’s denial of the motion for summary judgment on behalf of the co-defendant building owner based on untimeliness, proving that strict adherence to technical requirements in making such motions is essential.

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