Wednesday, June 24, 2015

An out-of-possession landlord.

Practice point:  Defendant established its prima facie entitlement to judgment as a matter of law in this action where plaintiff allegedly sustained injuries when he tripped over a cord while working in a kitchen facility operated by his employer, which is a nonparty.  The premises in which the kitchen was located were leased from defendant pursuant to a lease which had been entered into between the prior owner of the premises and plaintiff's employer.

Defendant submitted a copy of the lease that governed the rental of the premises to plaintiff's employer.  It also submitted an affidavit and the deposition testimony of its property manager. The Appellate Division determined that, taken together, the evidence demonstrated that defendant was an out-of-possession landlord that did not retain control over the premises and was not obligated under the terms of the lease to perform repairs or maintenance.

In opposition, the plaintiff failed to raise a triable issue of fact. While defendant retained a right to reenter the premises, plaintiff failed to allege in his complaint or bill of particulars that defendant violated any specific statutory provision, or to raise a triable issue of fact as to any such violation. He also failed to raise a triable issue of fact as to whether the defendant assumed a duty to repair the premises by virtue of a course of conduct.

Student note:  An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty to maintain or repair the premises imposed by statute or assumed by contract or a course of conduct.

Case:  Byrd v. Brooklyn 46 Realty, LLC, NY Slip Op 05142 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A municipality's liability for personal injuries, and 911 calls.