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HERE THE LEASE MADE THE OUT-OF-POSSESSION LANDLORD RESPONSIBLE FOR STRUCTURAL REPAIRS AND MADE THE THE TENANT RESPONSIBLE FOR ALL NON-STRUCTURAL REPAIRS; THE CRACKED STEP WAS NOT A STRUCTURAL DEFECT; THE FACT THAT THE LANDLORD WAS AWARE OF THE DEFECT WAS IRRELEVANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. The court noted that if, due to the provisions of the lease, an out-of-possession landlord is not responsible for the repair of a defect, the fact that the landlord had notice of the defect is irrelevant:

“An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it ‘(1) is contractually obligated to make repairs or maintain the premises or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision'” … .Here, defendant established that it was an out of possession landlord with no contractual obligation to make repairs or maintain the restaurant premises. Pursuant to Paragraph 4 of the lease agreement, all non-structural repairs to the premises were to be made by the tenant restaurant at its sole cost and expense. Moreover, the cracked step at issue was not a significant structural or design defect that is contrary to a specific statutory safety provision … .

In response, plaintiff failed to raise a triable issue of fact sufficient to defeat defendant’s motion. Plaintiff’s assertion that there is an issue of fact as to whether defendant had actual notice of the cracked step on which plaintiff fell is without merit. An out of possession landlord may not be held liable even if it had notice of the defective condition prior to the accident … . Padilla v Holrod Assoc. LLC, 2023 NY Slip Op 02082, First Dept 4-25-23

Practice Point: By the terms of the lease, the out-of-possession landlord was only responsible for structural repairs. The cracked step in this slip and fall case was not a structural defect. The fact that the landlord was aware of the defect was irrelevant.

 

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