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Out of Possession Landowners are Out of Luck

May 29, 2020

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<p style="text-align: justify;">Last year in <em>Xiang Fu He v. Troon Mgt. Inc</em>., the Court of Appeals held that out-of-possession landlords are no longer able to contract away liability based on New York City Administrative Code §7-210. This has led to many previously sound summary judgment decisions being reversed on appeal.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/05/Herrera.pdf">Herrera</a></em> <em>v. Vargas</em>, the Bronx County Supreme Court granted defendant summary judgment in 2017 based on the argument that defendant was an out-of-possession landlord.  However, in May, 2020, the Appellate Division unanimously reversed the decision, as <em>Xiang</em> held that a landlord’s duties under the administrative code are non-delegable.  The court noted that the prior decision that the defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals decision in <em>Xiang.</em></p>
<p style="text-align: justify;">Expect more summary judgment reversals based on the <em>Xiang</em> decision as commercial out-of-possession landlords are now responsible for keeping abutting sidewalks safe regardless of a tenant’s maintenance and repair requirements pursuant to a lease.</p>
<p style="text-align: justify;">Thanks to Mehreen Hayat for her contribution to this post.  Please email <a href="mailto:haquino@wcmlaw.com">Heather Aquino</a> with any questions.</p>

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