Question of Fact Whether Three-Family Residence Was Owner-Occupied–Administrative Code’s Exemption from Liability for Failure to Remove Ice and Snow May Not Apply

The Second Department determined Supreme Court should not have granted the property owner’s motion for summary judgment in a slip and fall case.  Although the NYC Administrative Code exempts owner-occupied one- two- and three-family residential properties from liability for the failure to remove snow and ice from an abutting sidewalk, the property owner failed to demonstrate the property was owner-occupied:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . However, this liability shifting provision does not apply to the failure to remove snow and ice from the sidewalk of “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The purpose of the exception is to recognize ” the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair'” … .

Here, the defendant property owner … failed to make a prima facie showing that he is entitled to judgment as a matter of law on the theory that he is exempt from liability pursuant to Administrative Code of City of NY § 7-210(b). Although there was evidence that the subject property was a three-family residence, [the owner’s] deposition testimony raises issues of fact as to whether the premises were “owner occupied” within the meaning of Administrative Code § 7-210(b)… . Medina v City of New York, 2014 NY Slip Op 06302, 2nd Dept 9-24-14