If you tripped on a broken sidewalk in Queens, the question you are probably asking is who pays for it. The answer surprises most people: in almost every case it is not the City of New York. It is whoever owns the building next to the sidewalk.

That has been the rule since 2003, and it changes almost everything about how a sidewalk claims works — who you make the claim against, which insurance company pays, and how long you have before the door closes. Here is how New York City sidewalk law actually works, and where it catches people out.

The short answer

• For most New York City sidewalks, the owner of the property next to the sidewalk is responsible for keeping it safe and is liable if someone is hurt on it.
• There is one large exception: owner-occupied one-, two- and three-family houses used only as homes. For those, the City is still responsible.
• Tree wells are not legally part of the sidewalk, and they follow a different rule again.
• Snow and ice have their own clock.
• If the City is the responsible party, you have 90 days to file a notice of claim — not three years.

The law changed on 14 September 2003

Before that date, New York City carried primary responsibility for the condition of its sidewalks. Section 7-210 of the New York City Administrative Code moved it.

The operative words are these: the owner of real property abutting any sidewalk “shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.”

Subsection (c) completes the switch. The City is not liable for injuries caused by a failure to maintain sidewalks, other than those abutting the small residential properties described below.

The practical effect is that a sidewalk claim in Queens is usually a claim against a building owner and their liability insurer, not against the City. For an injured person that is generally the better position to be in. There is no notice of claim to file in 90 days, and the deadline to sue is three years rather than one year and ninety days.

The exception that catches people out

Section 7-210 does not apply to one-, two- or three-family residential property that is (i) in whole or in part owner occupied, and (ii) used exclusively for residential purposes.

Both halves have to be true. That distinction decides cases:

• A three-family house where the owner lives on one floor and rents the other two — exempt. It is still owner-occupied and still entirely residential.
• The same house with a nail salon on the ground floor — not exempt. It is no longer used exclusively for residential purposes, so the owner carries the liability.
• A two-family house the owner rents out completely while living elsewhere — not exempt. Nobody who owns it lives there.
• A four-family house — not exempt. The exemption stops at three.

This matters more in Queens than almost anywhere else in the city. Much of Richmond Hill, South Ozone Park, Glendale, Woodhaven and Jamaica is exactly this housing stock: attached and semi-detached one-, two- and three-family homes, many of them owner-occupied, a good number with a business on the ground floor. Two doors on the same block can fall on opposite sides of the line.

Tree roots and tree wells are a separate question

Street trees in New York City belong to the City. In 2008 the Court of Appeals held in Vucetovic v Epsom Downs, Inc., 10 NY3d 517, that section 7-210 “does not impose civil liability on property owners for injuries that occur in city-owned tree wells.”

So the exact spot where your foot landed can decide who you sue:

• In the tree well itself — the soil, the gap, the missing grating — and the claim points at the City, with all of the extra steps that involves.
• On the concrete flag beside it, lifted by a root growing underneath, and you are back in section 7-210 territory: it is a sidewalk defect, and the abutting owner answers for it.

Photograph where you actually fell, from more than one angle, before anything is repaired. That single set of pictures often decides which of the two claims you have.

Worth knowing separately: NYC Parks runs a Trees and Sidewalks Program that repairs sidewalk damage caused solely by City trees at one-, two- and three-family properties at no cost to the owner, and the Department of Transportation no longer issues sidewalk violations to those properties in that situation.

What counts as a defective sidewalk

Section 19-152 of the Administrative Code sets out what a property owner has to fix. It defines a “substantial defect” and the list is more specific than most people expect:

• A vertical grade differential of half an inch or more between adjacent sidewalk flags. This is the classic trip hazard and it is the most common defect in an injury case.
• A surface defect measuring an inch or more in every horizontal direction and half an inch or more deep.
• A missing flag, or a place where the sidewalk was never built.
• A flag cracked badly enough that a piece could be loosened or lifted out.
• A flag that rocks or seesaws, or one with a visible void underneath it.
• Hardware, gratings and appurtenances that are not flush within half an inch of the surface, and cellar doors that deflect more than an inch when walked on, or that have no skid resistance.
• Patchwork: repairs that are not full depth, or asphalt and other non-approved material used on a concrete sidewalk.
• A slope that does not drain toward the curb and holds water instead.

Half an inch is not much — a little over half the width of a quarter. That is the useful trick, in fact: a quarter is just under an inch across, so standing one on edge against the lip gives anyone looking at the photograph later an instant sense of scale. A picture of a raised flag with nothing beside it proves very little a year on.

Snow and ice run on a different clock

Section 16-123 requires snow, ice and dirt to be cleared from the sidewalk within four hours after the snow stops falling, with the hours between 9pm and 7am not counted toward that four.

So if snow stops at 11pm on a Tuesday, the four hours do not start running until 7am Wednesday, and the deadline is 11am.

Two things to keep in mind. First, a Sanitation summons under section 16-123 is not the same thing as liability for your injuries — that still runs through section 7-210 and ordinary negligence. Second, insurers routinely raise the “storm in progress” defense, which is the argument that an owner has no duty to clear while a storm is still going on and for a reasonable time afterwards. When exactly the storm ended therefore becomes a real fight in these cases. Note the date, the time and the weather yourself on the day it happens, while you still remember it clearly.

When the City really is responsible

The City remains on the hook for sidewalks abutting exempt one-, two- and three-family owner-occupied homes, for sidewalks abutting City-owned property, and for tree wells.

If your claim is against the City, there is a further hurdle that has nothing to do with how badly you were hurt. Under section 7-201(c)(2) of the Administrative Code — the provision usually called the Pothole Law — you generally cannot sue the City over a sidewalk defect unless written notice of that specific defect had already been given to the Commissioner of Transportation, and the City then failed to repair it within fifteen days.

In practice that prior written notice usually exists, if it exists at all, in the form of the Big Apple maps. The New York State Trial Lawyers Association set up the Big Apple Pothole and Sidewalk Protection Committee in 1982 to survey city sidewalks, mark the defects and file the maps with the City each year. Whether your particular defect appears on the map, and whether it is marked as the right type of defect, can decide the whole case.

That is the main reason a claim against the City needs a lawyer looking at it early rather than late. The map has to be pulled and read before anything else is worth doing.

How long you have

Two different deadlines apply depending on who is responsible:

• A private owner: three years from the date of the accident to start a lawsuit, under CPLR 214(5).
• The City or another public entity: a notice of claim within 90 days under General Municipal Law section 50-e, and the lawsuit itself within one year and ninety days.

Ninety days goes quickly when you are recovering from a fracture. We have written about these deadlines in more detail in how long you have to sue after an accident in New York.

What to do after a sidewalk fall in Queens

1. Photograph the defect before it is repaired. Once an owner replaces the flag, the thing that proves your case no longer exists. Take wide shots that show the building and the address, and close shots with something for scale.
2. Note the exact location. Which building number, which flag, how far from the corner. “Near the deli on Jamaica Avenue” is not enough to pull a Big Apple map or identify an owner.
3. Get medical attention the same day. A gap between the fall and the first treatment is the first thing an insurer will point to.
4. Take names and numbers from witnesses. People who saw it are easy to find in the first hour and almost impossible to find in six months.
5. Do not give a recorded statement to the owner’s insurer. You are not required to, and it is rarely used to help you.
6. Move quickly if a public property might be involved. The 90-day clock does not care that you were in a cast.

Common questions

Who is responsible for sidewalk repair in NYC?

The owner of the property next to the sidewalk, in almost all cases. The Department of Transportation inspects and can issue a Notice of Sidewalk Violation, which carries no fine in itself but is filed with the County Clerk and gives the owner 75 days to do the work. If it is not done, DOT can arrange the repair and bill the owner for it. The exception is the owner-occupied one-, two- and three-family homes, where the City retains responsibility.

Can I claim if I fell outside a private house?

Yes, but the answer to who pays depends on the house. If it is an owner-occupied one-, two- or three-family home used only as a residence, the claim is against the City and the 90-day notice of claim applies. If it is anything else — a larger building, a rental, a mixed-use property with a shop on the ground floor — the owner is liable and you have three years.

How big does the height difference have to be?

Half an inch between flags is the threshold the Administrative Code uses to define a substantial defect. That is a measurement, not a judgement call, which is why photographing it with something for scale matters so much.

Which insurance actually pays?

Normally the abutting owner’s liability insurance — a commercial general liability policy on a mixed-use or apartment building, or a homeowner’s policy on a smaller house that falls outside the exemption. Your own health insurance may cover treatment in the meantime and then assert a lien against any recovery, which is one of the things worth sorting out early rather than at the end.

What if I was partly at fault?

New York uses comparative negligence. Your share of the fault reduces what you recover rather than barring the claim. Being told you should have been looking where you were going is not the end of the matter.

Do I need a lawyer for a sidewalk case?

For a claim against a private owner, a lawyer identifies the owner, obtains the violation and complaint history, and preserves the evidence before the defect is repaired. For a claim against the City, the prior written notice question has to be answered before anything else, and the 90-day deadline leaves very little room to work it out afterwards.

Talk to someone about it

We handle slip and fall and premises liability claims across Queens from our office on Jamaica Avenue. If you fell on a sidewalk and are not sure whose it was, that is exactly the question worth asking early — the answer sets the deadline, and the deadlines here are not forgiving.

Call 718-659-5333 for a free consultation, or see how we work with personal injury clients across Queens. There is no fee unless we win.