It’s that time of the year again: the Christmas lights are up; the air smells of pine trees and potato pancakes; and there’s a possibility of snow, sleet and ice.
There’s also a chance that someone might slip and fall at your co-op or condo property because of that snow, sleet and ice--and your corporation or association may be served up with a lawsuit in the New Year. So how can you steer clear of both snow and liability for your property?
Who's Responsible?
Stephen Boonshoft, an attorney with Robinson Brog in Manhattan, defines the situation simply: “If there is a hazardous condition--and ice and snow are hazardous conditions--and someone slips and falls, there is liability for the owner of the property.” In the case of a co-op, the owner of the property is the co-op corporation; for a condominium, it’s the condo association. “If there’s an injury, there’s a cause of action,” says Boonshoft.
There is little difference in most situations in New York between condominium and co-op forms of ownership relative to this issue, explains Stuart Halper of Impact Management, a real estate management firm with offices in New York City and Westchester. “There is one possible difference, and that depends on the nature of the property," he says. "In most cases the corporation or association is responsible for common areas. In condominium ownership, where you have garden-style apartments, a condo owner may be individually responsible for a walkway leading directly to their specific unit.” In that case, the individual unit owner might be subject to liability in the event of a fall and injury if they have been negligent with respect to what is required by New York City rules governing ice and snow.
Boonshoft says that, “New York City law requires that you must clean the walk or sidewalk within four hours of the snowfall if the snowfall ends by 9 p.m. Overnight snow must be cleared by 11 a.m. the next morning.”
Alex Seaman, Senior Vice President at national firm HUB Insurance, also says that public walkways must be cleared soon after a storm and to the best of your ability. “We also strongly recommend the use of video cameras which can provide evidence as to condition of walkways and existence (or non-existence) of an accident. If a property is utilizing a contractor for snow removal, make sure that you have insurance documentation including certificates of insurance naming the association and property manager as additional insured, and hold harmless/ indemnification agreements in favor of the association and property manager.”
The Insurance Factor
Slips, falls and liability are excellent examples of why it’s important to carry adequate and proper insurance. Seaman, explains that “Commercial general liability (CGL) insurance would address claims for the primary $1 million. If there is a very serious claim [that] could exceed $1 million, this would be addressed by the umbrella liability policy.”
Should a co-op or condo always refer a claim to insurance? Boonshoft says “there are a few things to consider. The first is how many claims you may have made previously. The second is the injury, and the third is the deductible on your policy.” If you have a large deductible, and the claim is small, it may be beneficial to just pay it. The possible result of the claim is a possible increase in premiums. “In any event, if you don’t file a claim for insurance, you still need to get a signed release from the injured party,” he says.
Halper says he always recommends to his clients that they file the claim, so that the insurance company will have to provide legal representation in the event of a lawsuit.
Perhaps Seaman’s suggestion is the most practical. “Anyone has the right to sue. It is not within the association’s reasonable right to reject a claim. The claim should be submitted promptly to the insurance carrier to make their own assessment and determination.”
Alan Sidransky is a staff writer for The Cooperator and a published novelist.
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