In Moreno v. Shanker, plaintiff was injured when he slipped and fell due to an alleged defective sidewalk condition.  Under the “sidewalk law”, Administrative Code of the City of New York § 7-210, property owners are liable for injuries arising due to failure to properly maintain its abutting sidewalk in a safe condition.  However, an exception is provided for properties that are one, two, or three family residences that are also owner-occupied.

The wrinkle in this case was while the owner technically “resided” at the premises at the time of the incident, it was conceded that the owner had temporarily relocated when the incident occurred due to property renovation that was converting the two-family property to a four-family property.  Ten months after the incident, a final certificate of occupancy was issued indicating that the building would have four dwelling units.

The property owner moved for summary judgment under the homeowner exception to the “sidewalk law,” claiming that it was owner-occupied and a two-family residence when the incident occurred.  The trial court denied the motion.

On appeal, the Second Appellate Department reversed the trial court’s decision, granted the defendant owner’s motion, and dismissed the plaintiff’s complaint.  The court ruled that since the plaintiff’s incident occurred prior to the property becoming a four-family residence, the owner was entitled to the statutory exemption. The court noted that the incident occurred while renovations were taking place to convert the property from a two-family to four-family residence and the owner had relocated to accommodate the renovations did not create an issue of fact. The court looked to the status of the property at the time that the incident occurred, which showed that the property was still a two-family property, not yet a four-family property, and still owner “occupied” despite the temporary move.

Thanks to Jung Lee for his contribution to this post.

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