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UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant homeowner was entitled to summary judgment in this sidewalk slip and fall case. Defendant was exempt from liability under the NYC Administrative Code and that defendant’s fence with a gate did not constitute a special use of the sidewalk:

In this trip and fall case involving an uneven sidewalk, defendant Ortiz’s testimony that she lived in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption provided at Administrative Code of City of NY § 7-210(b) … .

In opposition, plaintiff offers no evidence to the contrary, and no authority for her proposition that a party seeking to demonstrate that their home is a one-, two- or three-family home exempt from § 7-210 must produce a deed.

Nor is defendant Ortiz liable based on a theory that her fence, containing a gate, constituted a special-use. “The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others. . . . Special use cases usually involve the installation of some object in the sidewalk or street or some variance in the construction thereof” … . There is no evidence in the record that defendant’s fence is built on or in the sidewalk. That the gate, which defendant testified is “almost never” used, would permit herself and others to enter her property does not constitute a special use, as those using it would merely walk across the sidewalk, a use not “unrelated to the public use” … . Moreover, as the defect in the sidewalk is adjacent to defendant’s gate, not in front of it, it was plaintiff’s burden to demonstrate that this alleged “special use” caused or contributed to the defect … . Plaintiff offered no such evidence. Hernandez v Ortiz, 2018 NY Slip Op 07075, First Dept 10-23-18

NEGLIGENCE (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SLIP AND FALL (UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))

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