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OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFECT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT).

The First Department determined repair of the type of defect at issue was not the responsibility of the out-of-possession landlord:

Plaintiff seeks damages for injuries he sustained when one of the cellar doors he had opened to take garbage up to the sidewalk from the restaurant where he was employed snapped back and struck him on the back of the head. …

Although defendant Foreign Development Service, Ltd. was an out-of-possession landlord with the right to reenter the leased premises to inspect or repair, the alleged defect in the cellar doors, i.e., rusty hinges and no device, such as a bar, to hold the doors open, was not a structural defect contrary to a specific statutory safety provision … . Cuthbert v Foreign Dev. Serv., Ltd., 2018 NY Slip Op 03812, First Dept 5-29-18

​LANDLORD-TENANT (OUT OF POSSESSION LANDLORD, DUTY TO REPAIR, OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFENDANT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT))/PREMISES LIABILITY (OUT OF POSSESSION LANDLORD, DUTY TO REPAIR, OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFENDANT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT))

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PLAINTIFF, WHO HAD PASSED OUT AT A CONCERT, REFUSED ASSISTANCE IN WALKING TO THE BACK OF THE THEATER SO THE EMERGENCY MEDICAL TECHNICIAN COULD CHECK HIS BLOOD PRESSURE AND PULSE; WHEN HE ATTEMPTED TO WALK TO THE BACK OF THE THEATER HE PASSED OUT AGAIN AND FELL, HIS FACE HITTING THE FLOOR; THE DEFENDANTS DID NOT HAVE A DUTY TO ASSIST PLAINTIFF AFTER HE REFUSED THEIR HELP AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM IN THIS BREACH OF CONTRACT ACTION, BASED UPON DOCUMENTARY EVIDENCE, SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Question of Fact Raised by Competing Expert Affidavits Re: Proximate Cause
FALL THOUGH AN UNGUARDED FLOOR OPENING AT A CONSTRUCTION SITE IS COVERED UNDER LABOR LAW 240 (1), THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ABLE TO TIE OFF HIS HARNESS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF WAS NOT PROVIDED WITH A SECURED A-FRAME LADDER AND WAS NOT PROVIDED WITH ANYTHING TO SECURE THE PIPE HE WAS ATTEMPTING TO REMOVE WHEN IT FELL AND STRUCK THE LADDER; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE “RECALCITRANT WORKER” AND “FAILURE TO FOLLOW SAFETY INSTRUCTIONS” ALLEGATIONS DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).​ ​

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