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On March 29, 2019 the NYLJ published an article regarding a pending Court of Appeals case, He v. Troon, 2018-00168. The article, titled “Is Out-of-Possession Landlord’s Duty Under Administrative Code 7-210 Non-Delegable When the Condition Is Snow and Ice?,” was presented as an analysis of a legal issue but was essentially an advocacy piece. Further, the article contained numerous errors and faulty legal arguments which necessitates this response. I have reviewed the briefs in the appeal as well as the applicable statutes and cases and encourage others to do the same.

At the outset, I would note that that Court of Appeals likely granted leave in this matter because of the First Department’s interpretation and application of §7-210 as demonstrated in this case, Xiang Fu He v. Troon Mgmt., 157 A.D.3d 586 (N.Y. App. Div. 2018), and two predecessor cases, Cepeda v. KRF Realty, 148 A.D.3d 512 (1st Dept. 2017) and Bing v. 296 Third Ave. Group, LP, 94 A.D.3d 413 (1st Dept. 2012), lv. den., 19 N.Y.3d 815 (2012). In Bing, the plaintiff slipped on a transient condition on a ramp leading into a store. The First Department’s decision concluded that snow and ice on the ramp would be the tenant’s responsibility but equated the ramp to a sidewalk without recognizing the non-delegable duty imposed upon the property owner for the sidewalk under §7-210. The First Department reached its conclusion in Bing, in part, because “section 7-210 is not applicable to this action because plaintiff did not allege landlord’s violation of this section of the Administrative Code.”

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