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Lack of Ownership May Not be Sufficient to Defeat Summary Judgment on Premises Claim (NY)

October 14, 2022

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When a plaintiff slips and falls on property owned by a town, the town may not be the party on the hook. Generally, if a defendant is able to sufficiently establish that it did not occupy, or control the location where the accident occurred, it will not be held liable for the alleged injuries. In certain circumstances they must also establish they did not make special use of the premise to obtain summary judgment.

This was the case in <em><a href="">Toner v. Trader Joe's E., Inc.</a> </em>2022 N.Y. Slip Op 05555 (2d Dep't October 5, 2022), when Margaret Toner was walking in a parking lot when she fell and sustained injuries. The parking lot was owned by the Town of Hempstead, which also included an adjoined property owned by Elela Realty Co. The adjoined property was leased by Trader Joe’s East. Inc. After Plaintiff sustained her injuries, she filed suit against only Elela Realty Co. and Trader Joe’s.

Both Elela Realty Co., and Trader Joe’s moved for summary judgment, contending that the parking lot was neither owned by them nor leased by them, but rather owned by the Town of Hempstead. In opposition, Toner argued that Trader Joe’s made special use of the parking lot, which contributed to the defects that subsequently caused the accident. The 2<sup>nd</sup> Department found this argument compelling, providing that “[l]iability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or <em>special use of the property</em>.”

Thus, while Elela was able to successfully obtain summary judgment in that it did not put the parking lot to special use (substantiated by the signage on the parking lot and a copy the lease between Elela and Trader Joe’s), Trader Joe’s was not as lucky.  Even though Trader Joe’s was leasing the adjoining property, and the parking lot was owned by the Town, they were unable to obtain summary judgment, pursuant to the doctrine of special use.

Thanks to Christopher Palmieri for his assistance with this post.  Should you have any questions, please contact <a href="">Tom Bracken</a>.

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