Wade Clark Mulcahy LLP

Where a landlord leases a premises and does not retain control over it during the duration of the leased term, a landlord cannot face liability.

The prevailing case law holds that an out of possession landlord is not liable for injuries on a leased premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or conduct, to perform the relevant maintenance and repairs.

This situation was addressed in the recent decision of <a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Washington-v.-Jay-St.-Dev.-Corp.pdf"><em>Washington v. Jay St. Dev. Corp</em>.</a>, 2023 NY Slip Op 01818 (2d Dep’t April 5, 2023), plaintiff alleged she was injured when she tripped over a curled-up edge of a runner mat in the lobby of a building, causing her to slip and fall on the wet marble floor. At the time of the accident, the lower floors of the premises, including the lobby, were leased by the City of New York and the upper floors were leased by commercial tenants. Employees of the City of New York placed and maintained the runner mat on the lobby floor.

The landlord, Jay Street Development Corp., moved for summary judgment on the grounds that it was not a proper party to be sued because it was an out of possession landlord with no duty to maintain the lobby. The court noted that because plaintiff alleged common law negligence claims, rather than a violation of a statute, the defendant established its entitlement to summary judgment because it did not have a duty to maintain the premises by contract or conduct.

The court further noted that the landlord could transfer its duty to maintain the premises in a reasonably safe condition to the City pursuant to the lease, even though the lobby was in public use, and there was no evidence that the landlord knew or should have known of the dangerous condition at the time the lease was entered into.

Failing to raise an issue of fact, the Second Department upheld the lower court’s decision to dismiss plaintiff’s amended complaint as asserted against the landlord. This case serves as a reminder of the factors considered in determining whether liability can be imposed upon an out-of-possession landlord.

Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a>.