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Out-of-Possession Landlords May be Out of Luck on Risk Transfer (NY)

September 19, 2019

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<p style="text-align: justify;">The First Department just issued a decision allowing an out-of-possession landlord to contract away liability assigned through the New York City Administrative Code §7-210.   This decision is currently being <a href="https://www.wcmlaw.com/wp-content/uploads/2019/09/Court-of-Appeals-Weighs-Liability-for-Out-of-Possession-Landlords-in-Sid....pdf">reviewed by the Court of Appeals</a>.  Plaintiff claimed injury after slipping and falling on ice in front of his job on Flushing Avenue in Brooklyn.  His employer leased the building and as such, plaintiff was barred from suit due to the worker’s compensation law.  However, plaintiff sued the building owner as the administrative code assigns liability to property owners for injuries caused by the failure to safely maintain sidewalks.   The landlord moved for summary judgment citing a lease provision that plaintiff’s employer was responsible for keeping the sidewalk clean and free from snow.  Plaintiff opposed stating that while a landlord may contract away responsibility for the sidewalk, liability is non-delegable and the landlord’s recourse would be in indemnification.  The trial court agreed and the landlord appealed.</p>
<p style="text-align: justify;">The First Department reversed in a short decision stating that an out-of-possession landlord who contracted away responsibility for sidewalk maintenance could not be held liable for plaintiff’s injuries as the presence of snow and ice does not constitute a significant structural or design defect, however, they failed to address the administrative code.  During oral arguments, the Court of Appeals appeared receptive to plaintiff’s arguments questioning why the City would require property owners to have liability insurance if it was transferable to their tenants.  A decision is pending, but could potentially eliminate the out-of-possession landowner rule should the Court reverse the First Department.</p>
<p style="text-align: justify;">Thanks to Mehreen Hayat for her contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>

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