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If You Lose on Out of Possession Landlord Argument, There's Always Lack of Notice (NY)

November 21, 2019

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<p style="text-align: justify;">The Second Department recently handed down a reversal of a Kings County trial court’s decision which denied a landlord summary judgment for a slip and fall accident. Plaintiff was a patron at a deli operated by tenant and owned by landlord, 237 Avenue LLC. Plaintiff was exiting a bathroom when he tripped over boxes that had been stacked in the corridor immediately outside the bathroom. The Landlord moved for summary judgment arguing: (1) he was an out-of-possession landlord, and (2) he did not create the alleged hazardous condition or have actual or constructive notice of the condition.</p>
<p style="text-align: justify;">In its analysis, the Second Department concluded in<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2019/11/Robbins-v-237-Ave.-X-LLC.pdf">Robbins v 237 Ave. X LLC</a></em> that the Landlord failed to demonstrate as a matter of law, that he was an out of possession landlord because the lease he submitted along with his summary judgment motion was illegible, and deposition testimony from the Landlord witness failed to establish prima facie that the landlord expressly relinquished a duty to maintain the premises to the tenant.  However, the Second Department did conclude that the Landlord sustained their prima facie burden and did not create the hazardous condition of the stacked boxes and  did not have actual or constructive notice of the stacked boxes.  The plaintiff failed to raise a question of fact. The Second Department reasoned that summary judgment in favor of the Landlord should have been granted, and left the argument whether stacked boxes were a dangerous condition for the jury.</p>
<p style="text-align: justify;">For whatever reason, counsel could not produce a legible copy of the lease that would have presumably established the landlord's out-of-possession status.  Counsel did an excellent job on winning their fall back argument of lack of notice of the dangerous condition.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this post.  Please e-mail <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi</a> with any questions or feedback.</p>

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