Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/04/Vaughan.pdf">Vaughan</a> v. Triumphant Church of Jesus Christ,</em> 2021 NY Slip Op 02560 (2d Dept. 2021), a plaintiff fell down an open trap door in a deli and sued the owner of deli and the building owner. The building owner moved for summary judgment arguing that it did not control the premises and had no notice of the dangerous condition. "An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'" (<em>Fox v. Patriot Saloon</em>, 166 AD3d 950, 951). Further, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it" (<em>Rodriguez v. Sheridan One Co</em>., LLC, 177 AD3d 801, 801). The lease agreement between the building owner and the deli-tenant was unclear as to whether the owner was responsible for maintaining the trap door.</p>
<p style="text-align: justify;">However, plaintiff’s deposition testimony showed that he walked over the closed trap door on the floor and a few moments later walked backwards, without realizing that the doors had been opened. The plaintiff ‘s testimony established that the building owner could not have had any actual or constructive notice of the dangerous condition because it happened so quickly. Thus, plaintiff could not argue that the building owner failed in their duty to prevent a dangerous condition from existing in the deli.</p>
<p style="text-align: justify;">Plaintiff’s arguments that the building owner knew that a trap door existed in the deli and it could possibly constitute a dangerous condition was unconvincing to the court. This case highlights the fact that actual and constructive notice (or the lack thereof) can be established by the testimony of a witness. If the time is so brief that a property owner could not have been made aware of a dangerous condition, then a court will likely find that they are not liable as a matter of law.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this post. Please contact <a href="Haquino@wcmlaw.com">Heather Aquino</a> with any questions.</p>