Wade Clark Mulcahy LLP

In New York, an out of possession landowner cannot be liable for injuries caused by a dangerous condition on a leased premises absent a statute imposing liability, a contractual obligation placing the duty to repair on the landowner, or a course of conduct by the owner giving rise to a duty.

The Appellate Division, Second Department, recently applied this rule in the case of N.G. v. DRF Mgt. Corp. There, plaintiffs sought damages for injuries sustained by an infant plaintiff who was struck by a stray bullet while inside the premises owned by DRF. At the time, the premises were leased by Louis Escobar and operated as a pizzeria. The trial court granted DRF Management’s motion for summary judgment and plaintiff appealed.

The Second Department affirmed, holding that DFR owed no duty to the infant plaintiff. In so holding, the Court found that the complaint alleged liability based on common law negligence, rather than the violation of a statute. It also noted that when an out of possession landowner retains some control and some contractual duty to make repairs on the premises, the question of liability will turn on whether the injury producing condition fell within the landowner’s contractual obligations. Because DRF established it was an out of possession landowner that did not retain control over the premises, and the lease only required DRF to replace damaged plate glass at the tenant’s expense, DRF was not liable to the plaintiff. Given that holding, the Court did not address the issue of whether DRF had notice of the alleged dangerous condition.

This decision echoes that the liability of an out of possession landlord will depend on whether they have some control over, or contractual duty to maintain, the property at issue. Landlords with neither will have grounds to move for summary judgment if they can establish these facts as a matter of law.