HERE THE OUT-OF-POSSESSION LANDLORD WAS NOT LIABLE FOR A SLIP AND FALL CAUSED BY A LOOSE FLOOR TILE IN PLAINTIFF’S APARTMENT, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this premises liability slip and fall case, determined (1) the motion court should not have considered an argument first raised in opposition to the defendant out-of-possession landlord’s motion for summary judgment, and the defendant out-of-possession landlord could not be held liable for a loose floor tile in plaintiff’s apartment. The lease between defendant and plaintiff’s landlord made defendant responsible for maintenance of the public areas of the building and plaintiff’s landlord responsible for maintenance of all other areas:

The plaintiff’s allegation that the loose floor tile was caused by a leaky roof was not pleaded, “and a plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment” … .

… [An] “… 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, since the complaint sounds in common-law negligence and the pleadings do not allege a violation of a statute, the defendant cannot be held liable unless he retained control over the premises and owed a duty assumed by contract or a course of conduct … .

“[C]ontrol refers to the ability of an out-of-possession landlord to remedy dangerous conditions” … . “Reservation of a right of re-entry for inspection and repair in a lease may, under certain circumstances, constitute sufficient retention of control to impose liability for injuries caused by an alleged hazard” … . In the absence of a statutory violation, there must be a significant structural or design defect present in order for a right of re-entry to constitute sufficient retention of control to impose liability … .

Here, the defendant, who had no key to access the building, never visited the second floor, and did not know there were tenants living on the second floor, established, prima facie, that he did not have an ability to remedy the loose floor tile, which was not a significant structural defect … .  Alexandre v Shih T. Wang, 2025 NY Slip Op 04855, Second Dept 9-10-25

Practice Point: Consult this decision for a concise explanation of the liability of an out-of-possession landlord for a non-structural defect inside a tenant’s apartment.