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THE LEASE REQUIRED THE OUT-OF-POSSESSION LANDLORD TO REPAIR STRUCTURAL DEFECTS IN THE ROOF AND WALLS; THERE WAS A QUESTION OF FACT WHETHER WATER ENTERED THE PREMISES THROUGH DEFECTS IN THE ROOF AND WALLS CAUSING THE ALLEGED DANGEROUS CONDITION, A CRACK IN THE FLOOR WHICH ALLEGEDLY CONTRIBUTED TO PLAINTIFF’S INJURY (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the out-of-possession landlord was required under the terms of the lease to repair structural defects in the roof and walls and there was a question of fact whether such defects caused a crack in the floor. The cracked floor was alleged to constitute a dangerous condition which cause a load of tines in a payloader to fall and injure plaintiff:

Plaintiff commenced this negligence action seeking damages for personal injuries he sustained when tires that were being moved by a forklift struck him when they fell from the forklift after it drove over a crack in the concrete floor. Insofar as relevant to this appeal, the complaint asserted a negligence cause of action against Estes Express Lines (defendant), which owned the premises on which plaintiff was injured, alleging that defendant negligently permitted a dangerous condition to exist on the premises that contributed to his injury, i.e., the crack in the concrete floor. * * *

… [P]laintiff raised a triable issue of fact whether defendant was liable based on its contractual obligation to maintain the structural integrity of the roof and walls. … [T]he court …. properly denied defendant’s motion for summary judgment. … [P]laintiff submitted an affidavit from one of plaintiff’s former colleagues and from a code enforcement officer, who each averred that the damage to the floor may have been caused by water damage or water infiltration due to poor maintenance of the roof and walls. Plaintiff’s former colleague further averred that defendant had conducted annual inspections of the property and had previously repaired damage to the floor of the premises. Thus, there is a question of fact concerning defendant’s liability for defects in the condition of the floor … . Weaver v Deronde Tire Supply, Inc., 2022 NY Slip Op 07328, Fourth Dept 12-23-22

Practice Point: Whether an out-of-possession landlord is liable for injury caused by dangerous conditions on the property can be determined by the terms of the lease. Here the lease required the landlord to repair structural defects in the roof and walls. Plaintiff alleged water entered the premises through those structural defects causing a crack in the floor which contributed to his injury. Plaintiff’s allegations survived summary judgment.

 

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