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ALTHOUGH TRADER JOE’S APPARENTLY DID NOT OWN THE PARKING LOT WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT OCCUPY, CONTROL OR MAKE SPECIAL USE OF THE PARKING LOT; TRADER JOE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant Trader Joe’s motion for summary judgment in this parking lot slip and fall case should not have been granted. Although the parking lot was apparently owned by the town, Trader Joe’s did not demonstrate it did not occupy, control, or make special use of the parking lot:

“‘Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property'” … . “‘In the absence of ownership, occupancy, control, or special use, a party generally cannot be held liable for injuries caused by the dangerous or defective condition of the property'” … . * * *

Trader Joe’s failed to submit evidence sufficient to establish, prima facie, that it did not occupy, control, or make special use of the parking lot where the accident occurred, and that it cannot be held liable for Toner’s alleged injuries … . Toner v Trader Joe’s E., Inc., 2022 NY Slip Op 05555, Second Dept 10-5-22

Practice Point: Even though the defendant did not own the parking lot where plaintiff slipped and fell, to be entitled the summary judgment the defendant must show it did not occupy, control or make special use of the parking lot. The failure to do so here required denial of defendant’s motion.

 

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