Hello.

The area of the law to which my question pertains is summarized well by the information on the following web page:

http://www.wilsonelser.com/Publications/detail.aspx?pub=272

My interest in this section of the law stems from a dispute I have with
the NYC Department of Parks & Recreation Commissioner with respect to
its Trees & Sidewalks Program. I paid a contractor $700 to fix the
sidewalk in front of my home before ever hearing about the Trees &
Sidewalks Program:

http://www.nycgovparks.org/sub_your_park/trees_greenstreets/trees_sidewalks/about_program.html

In researching New York City Administrative Code as it regards the
Duties And Obligations Of Property Owner With Respect To Sidewalks, I
have found language to the effect that ‘In 2003, the New York City
Council modified this regime by adopting section 7-210 of the
Administrative Code’ and reference to Administrative Code of City of NY
§ 19-152 as being a ‘previous statutory scheme’. This text was found on
the following page:
caselaw.findlaw.com/data/ny/cases/app/81opn08.pdf

An inspector unexpectedly arrived at my home one day and explained that
he had come to repair my next door neighbor’s sidewalk directly
contiguous with ours and still severely damaged by the roots of the same
trees which had damaged our sidewalk. This was just a few weeks after
having had the repairs done to my sidewalk at my own expense of $700.

Her house is attached to ours. He informed me that, according to his ‘as
built design’, our sidewalk had been scheduled to be included in this
project and that it was for that reason that he had rung our bell. No
one had let us know anything about it before or, needless to say, I
would not have paid to have the repair done myself.

I then requested reimbursement from the NYC Department of Parks &
Recreation Commissioner but was told I would need make the request to
the NYC Office of the Comptroller. Their response to me was as follows:

According to Section 19-152 of the Administrative code, ‘the owner of
any real property, at his or her own cost and expense shall (1) install,
construct, repave, reconstruct and repair the sidewalk flags in front of
or abutting such property, including but not limited to the intersection
quadrant for corner property’. In view of the above, this claim is
denied.

Having read the language of Section 7-210 on your web page as well as
elsewhere, I see that subdivision (b) shall not 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.

My property meets these criteria of being a ‘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’.

I understand also from my reading of your web page as well as elsewhere
that Section 7-210 of the New York City Administrative Code, also
commonly known as the New York City Sidewalk Law, was enacted in order
to shift liability for sidewalk accidents from the City of New York to
real property owners. What is curious to me is that although I read on
caselaw.findlaw.com/data/ny/cases/app/81opn08.pdf that ‘the language of
section 7-210 “mirrors the duties and obligations of property owners
with regard to sidewalks set forth in Administrative Code sections
19-152 and 16-123″ ‘, I can find no reference in the text of section
19-152 to any exclusion for 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. This is problematic since this is
the section the NYC Office of the Comptroller Division of Law Claims
Specialist referenced and quoted as the basis of denying my claim.

I would think that inasmuch as the enactment of 7-210 was subsequent to
that of Section 19-152, Section 7-210 should supersede Section 19-152
but even if it does, my question is whether it places the liability for
the tree root damage to the sidewalk back with NYC as again it is
understood that its enactment was ‘to shift liability for sidewalk
accidents from the City of New York to real property owners’. Is the
language of subdivision (b) designed to be specific to this intended
tort liability conveyance as only (b) and (c) use any language regarding
an exclusion for 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 such that the language of
subdivision (a) would still mean I would be ineligible for reimbursement
for the cost of sidewalk repairs regardless of my property meeting the
exclusion criteria AND also regardless of the fact that the City’s
Department of Parks and Recreation is vested with exclusive jurisdiction
over the “planting, care and cultivation of all trees and other forms of
vegetation in streets” and NYC acknowledged and took full responsibility
for all repairs to the root system of the tree and the sidewalk by
launching the Trees & Sidewalks Program?

http://www.nycgovparks.org/sub_newsroom/daily_plants/daily_plant_main.php?id=19445

In the new pilot program, the City will take full responsibility for all
repairs to the root system of the tree and the sidewalk.

I do apologize for the length of this message.

Any suggestions, thoughts or observations you can share will be deeply
appreciated.

Sincerely,
Martin ****