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Question of Fact Whether Nonowner Occupied and Controlled Premises Where Plaintiff Fell

The Third Department determined there were questions of fact whether a nonowner of a premises, 68 Weibel Avenue, occupied and controlled the premises such that a duty to use reasonable care re: the condition of the premises arose. The owner of the property (third-party defendant) is the father of two sisters who operate defendant business across the street at 75 Weibel Avenue.  There was testimony that defendant business also occupied and controlled the area where plaintiff slipped on ice at 68 Weibel Avenue:

A nonowner who occupies or controls premises has a duty to exercise reasonable care regarding the condition of the premises … . The boundaries of occupancy and extent of control are typically addressed in a written agreement, and may also be established or modified by a course of conduct … . The absence of a written agreement creates a situation ripe for factual issues regarding relevant rights and responsibilities to the premises … .

Here, there was no written agreement between defendant and third-party defendant regarding the premises. Defendant and third-party defendant had a close familial relationship, and it does not appear from the record that there was even an oral agreement specifically delineating their rights and responsibilities. In light of the absence of any agreement, defendant’s conduct regarding the premises is particularly pertinent. Plaintiff testified that, although defendant had a retail store across the road at 75 Weibel Avenue, he was directed by defendant to make deliveries at the 68 Weibel Avenue shop. He recalled that an owner or an employee of defendant was always present at such address when he made a delivery. While there were other businesses that used the parking lot at 68 Weibel Avenue, plaintiff stated that there were never vehicles directly in front of defendant’s shop other than a vehicle of an employee/owner of defendant. He parked at such location in front of the shop when making deliveries and was so parked on the date of his accident. A freestanding sign for defendant’s business was located outside the building at 68 Weibel Avenue and in the vicinity where plaintiff parked. We agree with Supreme Court that, under the circumstances, there are triable issues of fact as to whether defendant exercised control over the pertinent part of the 68 Weibel Avenue premises. Contreras v Randi’s Enter., LLC, 2015 NY Slip Op 02165, 3rd Dept 3-19-15

 

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