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DESPITE A SMALL HOME OFFICE, DEFENDANT WAS ENTITLED TO THE LIABILITY EXEMPTION FOR OWNER-OCCUPIED RESIDENCES IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment in this sidewalk slip and fall case should have been granted. The NYC Administrative Code exempts abutting owner-occupied residential properties from liability. The fact that defendant had a small office where he edited photos did not change the purely residential nature of the property:

In 2003, the New York City Council enacted section 7-210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability shifting provision does not, however, apply to “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” … . “The purpose of the exception in the Code 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 appellant established, prima facie, that he was exempt from liability pursuant to the subject Code exception, and no triable issue of fact was raised in opposition. The appellant’s partial use of a room in his single-family home as an office to edit some photos in relation to his infrequent paid photography ventures was merely incidental to his residential use of the property … . The appellant was a retired photographer, and on occasion he would edit photos on his home computer in relation to two or three paid party photography jobs he did per year. The appellant did not claim a “home office” tax deduction, nor did he use this space in his home to edit these photos with any regularity. Zak v City of New York, 2021 NY Slip Op 01287, Second Dept 3-3-21

 

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