DEFENDANT OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT HAVE RESPONSIBILITY FOR MAINTENANCE OF THE AREA WHERE PLAINTIFF FELL (PARKING LOT RAMP); THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should not have been granted. The lease indicated the landlord had responsibility for maintenance of the ramp where plaintiff fell:

… “[A]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that it was an out-of-possession landlord. The defendant’s submissions in support of its motion, including its written lease with Petco and a transcript of the deposition testimony of its principal, did not demonstrate that it was an out-of-possession landlord with respect to the subject ramp. The lease obligated the defendant to maintain all appurtenant exterior areas, including the parking area, and the defendant’s principal testified at his deposition that the ramp was part of the parking lot, which the defendant maintained … . Further, the defendant failed to eliminate triable issues of fact as to whether its allegedly negligent maintenance of the ramp was a proximate cause of the plaintiff’s accident  … . Thepenier v BGTWO Realty, LLC, 2023 NY Slip Op 06272, Second Dept 12-6-23

Practice Point: Whether an out-of-possession landlord can be liable for a slip and fall on the property depends on the terms of the lease. Here the landlord had the responsibility to maintain the parking lot ramp where plaintiff fell.