Podcast Transcript:
Paul Edelstein:
Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I’ll have my partner Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts? Seems like every day we have these kind of questions and get asked them, so on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there and, hopefully, give you some answers, some interesting, some humorous, some surprising. Stick with us on pulling back the legal curtain.
All right, Mr. Faegenburg. Good afternoon.
Glenn Faegenburg:
Mr. Edelstein.
Paul Edelstein:
Nice to see you.
Glenn Faegenburg:
Good to see you again.
Paul Edelstein:
It’s been so long.
Glenn Faegenburg:
I know you’re very far away. I miss you.
Paul Edelstein:
Yeah, it’s been so long. I miss you as well. I thought we would talk today about snow and ice, since we’ve never seen snow and ice this winter, we haven’t seen any, and we just saw some snow and ice and I had to freaking get the shovel out for the first time all winter. It was unbelievable. And I said, “Let me come in and talk to Mr. Faegenburg about snow and ice and then, by extension, cracks and things and trees and all these wonderful things that happen on sidewalks,” because, as we know, you and I both live in Brooklyn. We-
Glenn Faegenburg:
Actually, it’s another casualty of global warming is that there are very few slip and fall cases on snow and ice these days because there ain’t no snow and ice to fall on.
Paul Edelstein:
I don’t know who would say that’s a casualty, I think people would be happy about that, but nevertheless, it is interesting that we hadn’t had any, and then we had some. I’m going outside to shovel before I came to work, and of course, it immediately brings to mind, why are people shoveling, and you and I always talk about this, and, obviously, you want to make people safe, but people always ask me about falling on that and what happens and who’s responsible. We get these cases all the time.
You live in an apartment right now. I live in a legal three-family house. These things become significant. I come out there and my soon-to-be high schooler comes up to me and is like, “Who’s responsible if I were to fall in front of the house right there?” And then I yelled at him to get back in the house, “Get out of here.” All right. But it’s a really good question. Who would be responsible for shoveling snow and ice when you wake up in the morning? I’m like, “All right. Clients come in and ask us this all the time.” And I’m like, “Well, you know what? You think that’s a simple question, right?”
Glenn Faegenburg:
That’s exactly what I was thinking about how people, I think, when you hear the word slip and fall or trip and fall, I think they think that these are very easy cases that any lawyer you could hire could figure out a slip and fall or a trip and fall case because how complicated can it be? Someone trips on something and they bring a case, right?
Paul Edelstein:
Yeah, yeah, exactly. It wasn’t that much snow and ice, but I did clear it. And then I got in the car with my wife and kids to give them a ride to school, and, of course, they asked me, said, “Well, what would happen if somebody fell in front of that?” And I said, “It’s interesting that you ask that because I just cleared the snow and ice, but had I done nothing, I might actually not be responsible if somebody fell. And if I did something and didn’t do a good job, I could be responsible. And, if it was still snowing, I wouldn’t have to do anything. And, if it was less than four hours after the snow had stopped after 7:00 AM in the morning, which it was, I’m out there, it’s 7:15 or something like that, and if the snow had stopped, I don’t know, a few minutes before,” I’m like, “I really don’t have to do anything.” They both were looking at me like I was crazy, and I’m like, “Let’s just shovel the snow and ice and make sure nobody falls.”
Glenn Faegenburg:
Right. It’s so damn complicated. It’s unbelievable that-
Paul Edelstein:
So weird.
Glenn Faegenburg:
And this is not something that somebody can just do themselves, a trip and fall case or something complicated, or even a lawyer who doesn’t really do personal injury but says, “Hey, you know what? I’ll do this because how hard can it be?” These are what results in malpractice cases,
Paul Edelstein:
Meaning lawyers messing them up?
Glenn Faegenburg:
That’s right, lawyers getting sued for messing these cases up.
Paul Edelstein:
Exactly. Let’s try to explain it. Let’s say, so if a client came in and asked me that, because I apparently couldn’t explain it to my wife and child the other day, I’m thinking, when I have to explain it to you, I’m a little more careful because you’ll beat me up, verbally assault me, if I don’t explain it well. Essentially, things have changed, okay, but things changed in 2003, when Mayor Bloomberg passed this administrative code, a new law.
Let’s talk about how the law is with respect to cases in New York, because that’s predominantly where we see it, so in the municipality. And what Bloomberg did was he decided, “Hey, look, we want people to shovel snow and ice and fix their broken sidewalks, and even though we don’t own them.” I’m shoveling snow and ice off the sidewalk in front of my house in Sunset Park where I live in. That ain’t my sidewalk, I don’t own it, but I’m doing it and, obviously, I’m doing it because I don’t want anybody to get hurt in my family or anybody. Everybody walks down my block to go to the subway. But, from a legal perspective, there is some responsibility to do it as well. Before Bloomberg passed this law in 2003, there was no code that covered it and it actually was the city sidewalk. How many times have you seen city workers cleaning snow and ice up?
Glenn Faegenburg:
Well, you know what? It’s funny, I’m a little bit more cynical about the reason. You’re like, “Well, we want the people that live next to these sidewalks to clean things up and take care of them.” I think really what it was was the city got tired of paying out all of these sidewalk claims. You walk around the city, you see a lot of messed up sidewalks, and all of those are potentials, obviously, for accidents. They were obviously getting every single claim that happened before this law was passed. Every single claim was going through the city. And, actually, it was a combination of bad things. It was also terrible for the victims themselves because they would have to deal with the city to get a settlement, which takes, unfortunately, when you’re dealing with the city, forever. They get extra advantages. You have to bring a notice of claim before you can even think about starting a lawsuit.
They’re entitled to their own deposition before you start. There are a lot of delays even before you start, and then you end up in some sort of part where it’s all city people, all city cases, and your case just gets mired, and this is what was happening. People were not getting results on their cases. It was taking forever. And, when they did finally, pay was all coming out of the city’s pocket. Somebody got the smart idea, you know what, maybe we should split the risk of maintaining the sidewalk with all the insurance companies that are ensuring all of these properties for millions and millions of dollars.
Paul Edelstein:
There you go. Awesome.
Glenn Faegenburg:
And it was a very good idea.
Paul Edelstein:
Yeah, our friends, the insurance companies, let’s talk to them. Well, and the reason is here … we’re talking about our sidewalks. All the sidewalks are owned by the city. They’re not the landowners like me. When Bloomberg changed the law, he then put the onus on the landowner and said, “Well, now you guys actually do have to fix it if it’s in front of your house. We need to know who the adjoining landowner is.” In my case, I’m the adjoining landowner of the sidewalk right in front of my house. Now the law mandated that I fix it and then I shovel snow and ice, but there is this snow and ice rule of two things, I guess, really it is. One is called storm in progress. If it’s still snowing, you really don’t have to shovel, and I do just because it’s easier and everything like that. But, from a legal perspective, if somebody slips and falls on snow and ice in front of my house, or any of the city sidewalks really, and it’s still snowing and hailing and things like that, they’re really out of luck.
Glenn Faegenburg:
I actually think that that law makes sense, I think, because while the storm is still coming down, you’re going to have just more accumulation anyhow, number one, and number two, you’re putting people in harm’s way potentially by sending them out into a storm to shovel snow. I think that there’s good reasoning behind that, allowing the storm to be over for at least some time.
Paul Edelstein:
Okay. But the bottom line is, if you fall and get hurt on a city sidewalk in front of whatever it is, and it’s still snowing at the time, you’d probably have a problem bringing a successful lawsuit just on that sterile set of facts. Right?
Glenn Faegenburg:
Absolutely.
Paul Edelstein:
All right. You might want to wait to fall until it stops snowing, I guess. Don’t go out. That’s what it is. But then you have this four-hour rule that you and I know as lawyers, which is a weird thing. And the four-hour rule basically says that the adjoining landowner, so it’s usually a homeowner or a commercial building, has four hours from the time the storm stops to get out there and clean it up. And they also-
Glenn Faegenburg:
Unless it’s nighttime, and then I think there’s additional time.
Paul Edelstein:
You’re so smart. You’re always ahead of me. I was just going to say that. It’s incredible. That’s right. If it’s in the middle of the night, the four hours really doesn’t start. Four-hour rule excludes 9:00 PM to 7:00 AM, so the clock doesn’t really start to run. Really, what that means is, when I wake up in the morning after a snowstorm, which just happened, and I’m out there at 7:00 AM to get ready to go to work, take these kids to school, and things like that, really you have a four-hour window from that period to shovel, technically, under the law. You have all these weird things.
And one more weird thing to be thrown in the mix could be that, depending on where you are, there could be even a separate law. This is the general city law, but if you’re in some smaller place, Staten Island, Poughkeepsie, Yonkers, some of these outer boroughs, Suffolk County, if we go to Long Island, that particular municipality could even have a different law, meaning you got to go get Mr. Faegenburg to figure this stuff out, because it’s get crazy.
Glenn Faegenburg:
That’s right.
Paul Edelstein:
And here I am thinking, snow and ice, it just should be so simple.
Glenn Faegenburg:
I think some places are 24 hours.
Paul Edelstein:
The rules could really, really vary. But, in the general overriding sense in New York, you do have this four-hour rule, this snow in progress rule, and this shifting of responsibility from the city, whose sidewalk it is, to the homeowners. But now let’s take it even further. Somebody slips and falls in front of my house and I have this new law that says it’s my responsibility and everything, or trips and falls on a crack in my sidewalk, and I go to you now, Mr. Faegenburg, and I go, “Wait a minute, man, this is my house. It is a single or two or three family house. Let’s say it’s that. That’s where I live. I live in a limestone building. All right. And it’s owner-occupied, I’m there, and it’s not my sidewalk. I shouldn’t be responsible for that snow and ice, or that crack, that this person got hurt on. Now what are you going to tell me?”
Glenn Faegenburg:
Well, I think that the law has been smart in a lot of different ways. The law said, “We want to make sure that these get cleaned up and we want to put the onus on the adjacent landowner and have insurance companies paying for this, but we don’t want this to be a burden on people that simply live in their own house. They’re single family owners, or maybe they have a tenant or two, okay? These are not people that have what we call deep pockets in the business, and we want to make sure that those people don’t get taken advantage of.” What the law says is that, if, in fact, you are one family or two family or a three family owner of a single residence, you’re off the hook. You’re not responsible for maintaining the sidewalk.
Paul Edelstein:
I love it.
Glenn Faegenburg:
You’re not responsible at all. It then goes back to the city and all the requirements that you need in order to hold the city, and which I’ll discuss in just one second-
Paul Edelstein:
Oh, yeah, that’s complicated.
Glenn Faegenburg:
… you need to do those again. But this is, once again, where you need a lawyer, and you need a good investigator, because it’s not always so clear exactly whether it’s really a three family. Is it a four family, okay? Is there someone living in the basement? These are the types of things you need to find out. In addition, any time there’s any sort of commercial property on that property, it changes the game. You live in an apartment where you would actually be exempt if there was a defect on your sidewalk. I live in an apartment as well. My apartment is only two families, okay? It’s less than yours, however, there’s a business on the ground floor. Okay?
Paul Edelstein:
What does that mean?
Glenn Faegenburg:
Changes the game, okay? Now the adjacent landlord is on the hook.
Paul Edelstein:
There you go. See, very, very complicated set of circumstances there. Now let’s go one thing at a time. Let’s say now you’ve got a trip and fall on a bad sidewalk or something, or a snow and ice case, somebody gets hurt, and that exemption doesn’t apply, applies rather. In other words, the homeowner’s off the hook, you don’t have them, and you’re going, “Well, now it’s the city’s sidewalk. The adjoining landowner’s not responsible because let’s say it’s a single family home occupied by the owner, so they have no responsibility to do any of this stuff.” You could sue them, but you’re going to lose. It’s not their responsibility. You still have the city that could be responsible for a snow and ice situation or a crack in a sidewalk or something like that. Now you could still go after the city. What do you have to show for the city to be responsible in that case?
Glenn Faegenburg:
Wow. This is where it gets very, very difficult. One of the other advantages, besides dealing with private insurance companies now with most of these trip and fall cases-
Paul Edelstein:
Now I’m suing the city. I can’t get the private insurance company on the hook from the homeowner because it’s a single family home. I’m suing the city. There’s a giant crack in the sidewalk. It’s not the adjoining landowner’s responsibility.
Glenn Faegenburg:
Constructive notice is another great advantage you get in a situation where you can sue the adjacent landowner. Constructive notice, it just means that the person should have known, okay? If something has been around for a long time, that’s almost basically constructive notice. That’s not true with the city, okay? The city, you actually need to show actual notice. Well, how am I going to prove actual notice? Do I get on the phone and call Mayor Adams and ask if he knows anything about it? No. Now, in the old days, there was a company called Big Apple Pothole Corporation. What they did, they basically went around to all of the sidewalks, or as many of the sidewalks in the city as they could, and they looked at all of these problems that they saw, uneven sidewalks, broken sidewalks, raised areas of the sidewalk, things sticking out of the sidewalk.
These were all the types of things that they would then look at, and then they would mark with a certain code whether it was uneven or this or that. And then a plaintiff’s lawyer, in the event that you had to prove actual notice against the city for a defect on the sidewalk, could then go to this company and say, “Hey, you have this map for this particular period of time, can you send it over?” And, if it showed that there was a defect in that area, that means that the city was given written notification, because they were sending notices to the city about every one of these defects. The problem is that company went out of business, it doesn’t exist anymore, so that doesn’t really exist. Really, the only way now to find out whether the city would have actual notice of a defective condition on the sidewalk is to look at prior, what they call, notices of claim, prior claims, prior lawsuits, okay?
Because you could establish that they knew, in writing, about a condition, if another lawyer had [inaudible 00:15:49] a fall, it has to be the exact same spot, in the exact same spot. If they fall in the exact same spot, you have actual notice. It’s almost like throwing a dart at the wall and you’re not a dart player. You just don’t know whether you’re going to hit it. You can have someone with a broken leg who tripped and you don’t have the actual notice and then you can have somebody with just a sprained wrist or whatever, and they would have actual notice. It’s not dependent on the size of the injury or anything like that. And, without that actual notice, you don’t have a case.
Paul Edelstein:
All right. Let’s recap this for a second. Now, in snow and ice cases against the city itself, you’re never going to have that because it’s just never going to be actual written notice with enough time for the city to clear snow and ice. It almost just never happens, so you could just forget that, that’s really unlikely, a successful snow and ice case against the city and the city sidewalk. You’re really looking to the adjoining landowner in those cases, and under this new statute, and you’re hoping that the adjoining landowner, if you fell there, is not a single, two or three family owner-occupied house. And we’ve had whole lawsuits that the fight was just that, was this a one family, is it a three-family or whatever?
Glenn Faegenburg:
But now I have to throw something else in there, cause and create.
Paul Edelstein:
No. Don’t go there yet. I’m just trying to sum up here
Glenn Faegenburg:
Don’t go there, okay, okay. Sorry about that.
Paul Edelstein:
All. In a simple case, that’s what you’re looking at with snow and ice. In a simple sidewalk case, same thing. If the adjoining landowner is exempt from responsibility there, because they’re a single, a two or a three family, then you’re just left with the city. And, in order for you to get the city to be responsible for some kind of sidewalk defect, you’re going to have to show that they had actual written notice of that defect, which, as you just explained, is complex. It can be done, but it’s not easy to do. Those are your standard, typical cases.
Now you just mentioned something to make it further murky and complex, which is cause and create. Now what you’re talking about is, and this could be the same thing, a snow and ice case or a sidewalk defect case, everything we just said could go out the window if you find somebody that caused or created the condition. That could be you shoveled the snow and ice and made a condition worse. Something refreezes, something happens like that. What you did actually created a problem. Now you can be on the hook for that, right? Or in a city case with a broken sidewalk, you can try to find that, hey, maybe you didn’t know about this, but you guys actually caused it or created it. You did some construction, you did something next to it, the city was using it. That’s what you’re talking about in cause and create, right?
Glenn Faegenburg:
That’s what I’m talking about. And lawyers try to be creative. There are times when there was an ice on the sidewalk condition where you’re trying to hold a adjoining landowner in that may have the exemption, but, if they actually negligently do something themselves, they don’t have the exemption. There are cases where, let’s say, the driveway is on a slope and the water is pitched in such a way that it continually collects onto the sidewalk and freezes. Depending on the facts, you may have a claim against the adjacent landowner for causing and creating that icy condition.
Paul Edelstein:
Great. This is now getting more and more confusing. Thank you for really overly complicating this. Let’s give you two more topics and see if you can clear this up for me or make it even more complex. The next one I would say is, well, wait a minute, the defect on this sidewalk in front of this single family home, you’re now telling me he’s exempt because of this new law, he’s a single family home, for this crack or this snow and ice condition. But wait a minute, Mr. Faegenburg, that condition that I fell on happened on a driveway. Does that make a difference?
Glenn Faegenburg:
Oh, yeah, because now there’s a whole nother section of the law that lawyers can use, which is called special use. Okay?
Paul Edelstein:
No, that’s funny, Mr. Faegenburg, because I’m making special use of you, right? I love special use. That’s my favorite phrase. I specially use people like you all the time, smart people. Go ahead, tell us about special use in this case.
Glenn Faegenburg:
Well, special use basically means does somebody that you’re planning on bringing the claim against, are they going to derive a benefit from whatever exists? For example, let’s say there is a cutout in the sidewalk and that cutout is being used for a parking lot and there’s driving that’s going over that cutout back and forth, and that driving wears down that cutout and the cutout becomes broken and someone trips and falls on that cutout. Well, that may be what they would call a special use, and that’s another way to get liability against someone who might not normally be on the hook, also, the same thing for the city. The city, let’s say, put up a fire hydrant, okay, and they put it in some sort of terrible, dangerous spot. They’re deriving a benefit from this fire hydrant, or let’s say it’s one of those little gas lines or whatever, it’s a benefit that the city may be getting from that thing being there. And if it’s in a defective condition, then you may have them on the hook for a special use.
Paul Edelstein:
Very good. And now you mentioned something else, before I give you your last quiz question here, and that is appurtenances. I like that word too, appurtenance. It’s a cool word to say. An appurtenance is like a manhole cover, gas cap cover, these things we see all the time. I happen to be the appurtenance expert in this office, Con Edison, my favorite foil here. And so companies like Con Edison, Brooklyn Union Gas, we’re used to having all these things, they’re responsible for those appurtenances. They are required to be flush with the sidewalk, and if they’re not, those companies could be responsible, and you really don’t even have to go through all this stuff of actual notice and this and that because they’re supposed to inspect them and ensure that they’re flush with the sidewalk.
If you happen to fall over an appurtenance, see, I like saying that, you actually might have a case a little different than what we’re talking about here, so that’s that. But I’m going to throw one more curveball to you, Mr. Faegenburg, since you hit curveballs really, really well. I like fast balls, straight stuff. You seem to be a little bit different. And I know you’re an expert on this. Mr. Faegenburg, I fell on the sidewalk, but it was in a, what we see all the time, in a tree well. I fell in this tree well. You just told me all about this sidewalk law and, there he goes, it’s a tree well. Same thing, more complicated?
Glenn Faegenburg:
Well, you know what? I won’t say it’s more complicated, but given the choice between falling on the sidewalk or falling in a tree well, you want to fall on the sidewalk, okay? That’s number one.
Paul Edelstein:
Well, so what are you telling me?
Glenn Faegenburg:
You don’t want to fall in the tree well.
Paul Edelstein:
Where’s the tree well? Is that [inaudible 00:22:34] on the sidewalk?
Glenn Faegenburg:
I’ll explain to you why. Well, trees have people confused about a lot of things. I want to talk about tree wells, we’ll also talk about tree roots, okay, because I think people get very, very confused. The tree well themselves, those are city. The city has the tree well. The owners have no responsibility with respect, even the ones that are in the non-exempt category. You could be a big commercial landlord-
Paul Edelstein:
Even the new law.
Glenn Faegenburg:
… have a tree well in the front of your property, as long as you don’t mess with it and screw something up and you go into the tree well and do something yourself that changes the tree well, as long as the tree well was the tree well that the city put up there, you’re not on the hook. And the problem is it’s very, very difficult to get the city on the hook on a tree well because, often, the argument will be, well, they put it in negligently, okay, it was put in wrong. Well, that will often be years before the accident occurs, and there are all sorts of cases that protect the city from this concept of cause to create if it’s been too long a period of time.
The cause and create problem, in order to get the city in the case, you need something that just basically recently happened, not something that happened five years ago. You’re not going to be able to say the tree well was put in wrong. Then you’re going to need someone to actually have made a prior claim of falling inside that tree well, okay, and you still need to prove, even if there was that claim, that it was negligence with respect to the way that tree well’s put together. Often, let’s face it, tree wells are dirt and roots, so there’s an expectation, and we haven’t even talked about comparative negligence today, which is-
Paul Edelstein:
Come on, I feel like I fell in a tree well. Come on here. All right.
Glenn Faegenburg:
… which is, if you’re walking into the tree well, you may bear some responsibility yourself for putting yourself in that position. Tree wells are not great. I think a lot of people also think, “Well, you can sue the city. Well, the tree well was bringing up the sidewalk, okay, and so the sidewalk flag was uneven.” The case really is the sidewalk flag, not the tree roots bringing up the sidewalk because against non-existent case against the city, they put these trees in 50, 100 years ago, whatever it is, okay? You’re never getting them on cause and create, and it’s not negligence for the tree to do what it’s supposed to be doing, which is growing.
It’s actually the adjacent landowner’s responsibility to then somehow cope with the tree root problem. And, by the way, it becomes very complicated because, if you start touching the trees, guess what happens? The city sends somebody out, says, “Stop touching the trees.” It really is like a catch-22. It really is a very, very tough situation. In situations where tree roots bring up the sidewalk, you really are looking at, once again, the sidewalk case, and if there is no exemption, you can go after the adjacent landlord, you go after them for the raised flagstone and not for the tree well.
Paul Edelstein:
Wow. It sounds to me the easiest thing to have happen would be to just fall in front of the Trump building or something like that.
Glenn Faegenburg:
I would love everyone to fall in front of the Trump building. That’s way easier. I have my own political reasons.
Paul Edelstein:
It’s funny. But the problem is, with that kind of commercial building, they actually do a pretty good job clearing snow and ice and making sure that sidewalk, even if it’s not theirs, is perfectly maintained, and one reason they do is because of everything we just talked about today. That’s why you see that.
Glenn Faegenburg:
Right? I think what the takeaway is, it’s confusing. Okay? It’s not as easy as everybody thinks. It’s so complex. There are cases that you and I have had, trip and fall cases, where we’ve had four or five different defendants. There’s the landlord, there’s the tenant, there’s a maintenance company, all sorts of people that ultimately become involved, and you need to be very, very well-versed in figuring out how to navigate this or else you can end up really, really blowing a case. There are many, many cases that have been blown because people did not figure out the right parties to sue in these types of situations.
Paul Edelstein:
Well, it sounds like you do know that. If I should fall, I know who I’m asking, you, Mr. Faegenburg, tree well, sidewalk defect expert.
Glenn Faegenburg:
Right. And if I need appurtenance help, which I often do-
Paul Edelstein:
That would be me. See, appurtenances.
Glenn Faegenburg:
… I’ll be calling you.
Paul Edelstein:
It’s a fantastic word.
Paul Edelstein:
Well, you cleared that up for me, Mr. Faegenburg, so now we can clear our snow and ice in peace.
Glenn Faegenburg:
Okay, very good.
Paul Edelstein:
Listen, said we’re out of here.
Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so that it would be entertaining and interesting and, hopefully, educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we’re always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care.
You can find The Edelsteins Faegenburg & Brown Law firm on LinkedIn.