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CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint against the landowner in this slip and fall case should not have been dismissed. Plaintiff allegedly slipped and fell in the parking lot of a shopping center. Plaintiff sued the landowner three days before the statute of limitations expired. The property address of the shopping center was wrong on the original summons and complaint. A couple of months later plaintiff served a supplemental summons and amended complaint which corrected the address and added defendants. The cause of action against the landowner should not have been dismissed because the lease gave the property owner some authority over keeping the premises safe and because the relation-back theory rendered the amended complaint timely. The causes of action against the added defendants were deemed time-barred because the relation-back doctrine did not apply to them:

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s allegations, thereby conclusively establishing a defense as a matter of law … . Here, the defendants’ own affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) … , and the ground lease between them and Stavan, Inc., failed to utterly refute the plaintiff’s factual allegations. “Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . Although “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … , and, here, the lease required the lessee to “keep [the subject property] in good repair” and “make or cause to be made any and all repairs both inside and outside,” the lease also gave the defendants the right to reenter the subject property and “perform and do such acts and things, and make such payments and incur such expenses as may be reasonably necessary to make . . . repairs to comply with the requirements” under the lease. Thus, the lease failed to conclusively establish a defense as a matter of law … . …

“The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … . Here, the plaintiff failed to demonstrate that the relation-back doctrine applied inasmuch as she did not establish that the additional defendants had knowledge of the claim or occurrence within the applicable limitations period, and that her failure to name them as defendants in the original complaint was due to a mistake on her part … . Pirozzi v Garvin, 2020 NY Slip Op 03932, Second Dept 7-15-20

 

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