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Landowners' Summary Judgment Motion Defeated By Its Own Lease Agreement

September 28, 2008

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In Susanne Greis v. Eckerd Corporation et al, an "out-of-possession" landlord learned a hard lesson in not having precise language in its lease agreement. In this case, plaintiff slipped and fell on snow on a ramp leading to Eckerd's store located within a shopping center owned by co-defendant, Mandarin Realty Company. Mandarin moved for summary judgment to dismiss Eckerd's cross-claims since Mandarin claimed to be an out-of-possession landlord that had surrendered possession and control of the subject area to Eckerd. The trial court granted Mandarin's motion.

In reversing the trial court's decision, the Appellate Division found that Mandarin failed to establish as a matter of law that it was an out-of-possession landlord because the lease agreement failed to support this claim. In particular, the lease agreement failed to delineate the subject ramp where plaintiff fell as part of the demised premises possessed by Eckerd. Another provision in the lease actually required Mandarin to keep all common areas clear of snow that pursuant to the lease included passageways, sidewalks and walkways.

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