Having a Home Office Might Expose You to Liability in New York City

Since 2003, responsibility for slip and fall accidents on New York City sidewalks has shifted from the City to contiguous property owners (Section 7-210, Administrative Code). However, this stricture does not apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes…”  With the rise of home offices (some reports indicate as many as many as 30 million people work from a home office at least once a week), what does this mean for residents of New York City who maintain a home office?  The reasoning in the recent decision of Koronkevich v Dembitzer may be instructive.

When Nelli Koronkevich stumbled and fell on a faulty sidewalk that abutted real estate owned by the defendants (Alexander and Henny Dembitzer), the plaintiff initiated an action for damages.  The defendants moved to dismiss the complaint under the above exception claiming the property was: (1) a two-family property; (2) entirely occupied by them and their children; and (3) used exclusively for residential purposes. The trial court denied defendants’ motion, reasoning that, among other things, the defendants did not use the premises for exclusively residential purposes.

On appeal, however, the trial court’s order was reversed---and summary judgment dismissing the complaint was granted to defendants. Here, Alexander Dembitzer was the director of a summer camp located in upstate New York, and during the off-season, he used the property’s basement to conduct the camp’s business. However, the Appellate Division, Second Department, found that the defendants did not claim the home office as a tax deduction, their home address was only used to receive the camp’s mail during the off-season, and they did not use the office space with any regularity. Therefore, the court believed that defendants had established that they were exempt from liability---pursuant to the exception---because the partial use of the basement as an office space was merely incidental to their residential use of the property.

Using the court’s reasoning, had the defendants claimed the home office as a tax deduction, received mail at that address, and/or used the office with some regularity, the defendants may have been faced with liability.