SDNY Bankruptcy Judge Refuses to Extend Bankruptcy Stay to Non-Bankrupt Building Owner

            Typically, when a large retail company files for bankruptcy protection hundreds (if not thousands) of personal injury claimants are dramatically affected by the “stay” typically granted under the Bankruptcy Code.  When the defendant is a “self-insured” entity the stay usually cannot be lifted and the plaintiffs are lumped in with the other unsecured creditors.  At the end of the bankruptcy proceedings these claimants usually get some token amount – very rarely a sum that reasonably compensates them for their injuries.

            However, there is a way of avoiding this result IF the case involves a sidewalk accident in New York City where there is a lawsuit against the building owner.  Last week, the Honorable Robert Drain denied A&P’s motion seeking to extend the bankruptcy stay protection to a non-bankrupt building owner.  The significant factors in our presentation to the Court were: a) we severed the debtor from the State Court proceedings; b) the negligence claim was based on NYC Adm. Code §7-210 – which imposes a non-delegable duty on building owners to maintain the adjacent sidewalk; and c) The lease provision between the landlord and A&P whereby A&P has to indemnify the landlord for any accident claims involving the sidewalk is probably void under New York Law.    

            By fighting for our client, her case will be proceeding to trial next month -instead of being put on hold until the bankruptcy proceedings for a multi-billion dollar entity are concluded.

Homeowner Liability for Snow/Ice Removal

Even as the weather gets warm and this past winter's snow storms become a distant memory, we take a look at the individual homeowner's liability for snow/ice removal in New York City. Under New York City Administrative Code Section 7-210 the owner of the property adjacent to the sidewalk is responsible for dangerous/hazardous conditions on the sidewalk, except where the property is a 1-2 family residential home.  The public policy rationale is that we do not want to hold the owner of the family home responsible for maintaining the public sidewalk in a safe condition. 

However, where the homeowner makes the effort to remove snow and ice he/she must do so properly and can be held liable for negligent snow/ice removal.  In  Robles v. City of New York, 56 A.D.3d 647; 868 N.Y.S.2d 114 (2d. Dept. 2008) the Court reaffirmed that “in the absence of statute or ordinance, an owner or lessee of property abutting a public sidewalk may be held liable where it undertook snow removal efforts which made the naturally occurring condition more hazardous.”  More recently, in San Marco v. Village of Mount Kisco, 16 N.Y.3d 111 (2010), the plaintiff claimed he slipped on ice resulting from melting and refreezing of snow in a Village parking lot.  The Court of Appeals denied the motion for summary judgment; holding that “primarily, a jury must decide whether San Marco fell on ice created by the Village’s snow clearance operation.”

Although it does not make any sense to a logical person, if you bundle up to brave the elements and actually try to do the right thing you may end up being held liable.  However, if you do nothing and let your neighbors struggle past your house you may be able to avoid responsibility if they get injured.  Why we essentially “reward” the homeowner who does nothing is beyond me. 

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