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PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant 219 Ave. A was an out-of-possession landlord which, by the terms of the lease, was not obligated to repair or maintain the premises where plaintiff’s fall occurred. Plaintiff was standing on a couch in defendant Planet Rose’s karaoke bar when she fell backwards through a storefront window:

… [T]he owner of Planet Rose acknowledged that when vandals smashed another window in the storefront years earlier, the glazier recommended tempered glass as the best option for a storefront, and she accepted that recommendation. She also testified that there were many times over the years that patrons stood on the couch, as shown in photographs posted on Planet Rose’s social media. Thus, the record presents issues of fact as to whether defendants were negligent in failing to use tempered glass in the window to prevent a foreseeable injury … .

… Given the evidence that patrons of the karaoke bar sometimes stood on the couch, plaintiff’s conduct was not extraordinary or unforeseeable, and it therefore cannot be said that the setup at the bar merely furnished the occasion for the harm … .

219 Ave. A demonstrated that it had relinquished sufficient control of the premises to be deemed an out-of-possession landlord, and as such, was not contractually obligated to make repairs or maintain the premises … . Accordingly, its liability is limited to claims “based on a significant structural or design defect that is contrary to a specific statutory safety provision,” which are not at issue here … . Kitziger v 219 Ave. A. NYC LLC, 2023 NY Slip Op 00239, First Dept 1-19-23

Practice Point: Because patrons of defendant karaoke bar stood on the couch to dance, plaintiff’s fall through the storefront window was foreseeable and the failure to install tempered glass may have been negligent. This was not a case where the condition (the glass storefront window) merely furnished the occasion for the accident, as opposed to a proximate cause. By the terms of the lease the out-of-possession landlord was responsible only for structural repairs which were not at issue.

 

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THE TERMS OF THE LEASE DID NOT DEMONSTRATE DEFENDANT OUT-OF-POSSESSION LANDLORD DID NOT HAVE A DUTY TO MAKE NONSTRUCTURAL FLOOR REPAIRS; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the terms of the lease raised a question of fact whether the out-of-possession landlord was required to repair nonstructural floor defects:

“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'” … . “Where the terms of an agreement are unambiguous, interpretation is a question of law for the court” … . Here, according to the lease agreement, the landlord was required to “make all structural, exterior walls, floor and roof repairs and replacements to Tenant’s Building.” Contrary to the defendant’s contention, pursuant to the lease agreement, its duty to repair the floor was not limited to floor conditions which were structural in nature, and it failed to establish, prima facie, that it had no duty to repair the alleged nonstructural condition at issue … . Weidner v Basser-Kaufman 228, LLC, 2023 NY Slip Op 00126, Second Dept 1-11-23

Practice Point: The lease provided the out-of-possession landlord was required to “make all structural, exterior walls, floor and roof repairs and replacements to Tenant’s Building.” The landlord was not entitled to summary judgment in this slip and fall case on the ground the lease did not create a duty to make nonstructural floor repairs.

 

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​ BY THE TERMS OF HIS LEASE, PLAINTIFF WAS RESPONSIBLE FOR SNOW AND ICE REMOVAL IN THIS SLIP AND FALL CASE; THE OUT–OF-POSSESSION LANDLORDS WERE NOT RESPONSIBLE AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendants-out-of-possession landlords were not responsible for snow and ice removal in the area where plaintiff slipped and fell, In fact, plaintiff, by the terms of his lease, was responsible for the snow and ice removal:

… [T]he defendants demonstrated, prima facie, that they were out-of-possession landlords who were not contractually obligated to remove snow and ice from the subject driveway, that they did not assume such a duty through a course of conduct, and that they did not violate any relevant statute or regulation … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had a duty to remove snow or ice under statute or regulation, the terms of the lease, or a course of conduct … . Sweeney v Hoey, 2022 NY Slip Op 07471, Second Dept 12-28-22

Practice Point: Here the out-of-possession landlords were not responsible for snow and ice removal in the are where plaintiff-tenant fell. In fact, plaintiff, by the terms of his lease was himself responsible for the snow and ice removal.

 

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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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THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the landlord (held to an ordinary negligence standard) were aware of the dog’s vicious propensities. The relationships among the parties and the unsuccessful arguments made by defendants in support of summary judgment are too detailed to fairly summarize here:

… “[A]n owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities” … . “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” … . “Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … .

… “[A] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog” … . When, “during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] ‘had control of the premises or other capability to remove or confine the animal’ ” … . Michael P. v Dombroski, 2022 NY Slip Op 07318, Fourth Dept 12-23-22

Practice Point: A landlord who is aware of a dog’s vicious propensities can be held liable in a dog-bite case under a standard negligence theory.

 

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ALTHOUGH THE AGREEMENT BETWEEN PLAINTIFF COUNTRY CLUB AND DEFENDANT FOR THE CONSTRUCTION, MAINTENANCE AND USE OF A BOAT SLIP WAS A LICENSE, NOT A LEASE, THE LICENSE, BY THE TERMS OF THE AGREEMENT, WAS NOT TERMINABLE AT WILL BY THE COUNTRY CLUB; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the agreement between plaintiff country club and defendant concerning the construction, maintenance and use of a boat slip was a license, not a lease, but, under the terms of the agreement, the license was not terminable at will by the country club:

… [T]he terms of the agreement unambiguously state that defendant is required to pay the annual maintenance fee and to comply with plaintiff’s rules and policies, thereby establishing through implication that plaintiff may terminate the license only when defendant fails to comply with those specified terms … . Plaintiff’s interpretation of the agreement as permitting plaintiff to terminate the license at will, despite the aforementioned provisions governing defendant’s obligations, renders those specific provisions nugatory, contrary to the general approach to interpreting contracts …

… [T]he agreement expressly permits defendant to terminate it and receive a return of the monies contributed pursuant to the payment agreement, less any monies owed to plaintiff. We agree with defendant that the express inclusion of a right of termination for her compels the conclusion that the exclusion of any corresponding express right for plaintiff to terminate the agreement was intentional … . … [The] structure of the agreement establishes that the license is not terminable at will by plaintiff. Skaneateles Country Club v Cambs, 2022 NY Slip Op 07315, Fourth Dept 12-23-22

Practice Point: Licenses for the use of real property, here the construction, maintenance and use of a boat slip, are not automatically terminable at will. Here the terms of the underlying agreement were interpreted to mean the license was terminable only if defendant breached the agreement.

 

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DEFENDANT OUT-OF-POSSESSION LANDLORD WAS NOT RESPONSIBLE FOR MAINTENANCE OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this stairway slip and fall case was an out-of-possession landlord who was not responsible for maintenance of the stairway treads:

Article 7(A)(i) of the lease imposed on Cava [the tenant] the obligation to maintain and repair the nonstructural portions of the demised premises … . The testimonial evidence established that Cava, consistent with its obligations under the lease, assumed responsibility over the subject staircase … . Although the lease granted defendants the right to re-enter to make repairs, the stairway condition was not a significant structural or design defect that was contrary to a specific statutory safety provision … . Kamara v 323 Pas Owner LLC, 2022 NY Slip Op 07296, First Dept 12-22-22

Practice Point: The tenant, pursuant to the lease, had assumed responsibility for maintenance of the stairway where plaintiff fell. The defendant out-of-possession landlord was entitled to summary judgment.

 

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PLAINTIFF-TENANT’S COMPLAINT ALLEGED DEFENDANT-LANDLORD’S STIPULATION WITH THE PRIOR TENANT IN 2000 ILLEGALLY DECONTROLLED THE APARTMENT; THE MAJORITY DISMISSED THE COMPLAINT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s complaint should have been dismissed. “Plaintiff, the current tenant of the subject apartment, commenced this action seeking a declaration that her tenancy is subject to the Rent Stabilization Law (RSL) and that the premises were illegally decontrolled in 2000 when defendant owner and nonparty Edward McKinney reached a ‘private agreement’ circumventing initial rent registration procedures for decontrolling the apartment.” The decision and the dissent are detailed and fact-specific and cannot be fairly summarized here:

An agreement by a tenant to waive the benefit of any provision of the rent control law is expressly prohibited and void (9 NYCRR 2200.15 …). However, when McKinney and defendant settled their dispute over McKinney’s status, McKinney was not a tenant … . He was not on the lease and had no evident rights, other than being an occupant of the apartment who claimed that he had succession rights when Brown died. … Defendant, on the other hand, denied that McKinney was anything other than a squatter/licensee or possible roommate of the deceased. By entering into the 2000 stipulation, both sides, represented by counsel, resolved their dispute as to whether McKinney had any statutory right to the apartment. By doing so, McKinney and defendant chose the certainty of settlement, rather than the uncertainty of a judicial declaration about McKinney’s status … .

From the dissent:

… I would find that plaintiff has sufficiently pleaded that the stipulation that McKinney and defendant executed in 2000 (the 2000 stipulation) was void under applicable statutes, as interpreted by our Court and the Court of Appeals. Accordingly, I would vote to affirm the portion of the motion court’s decision that denied defendant’s motion to dismiss the first, third and fourth causes of action. Liggett v Lew Realty LLC, 2022 NY Slip Op 07000, First Dept 12-8-22

Practice Point: Plaintiff-tenant alleged defendant-landlord illegally decontrolled the apartment in 2000 by entering an agreement (a stipulation) with the prior tenant. The majority held the complaint did not state a cause of action. The two dissenters disagreed.

 

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THERE CAN BE NO REPUDIATION WHERE THERE HAS BEEN A BREACH OF CONTRACT, TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff in this landlord-tenant dispute could not seek separate redress on a theory of repudiation for the breach of contract cause of action. The decision is fact-specific and cannot be fairly summarized here:

… [B]ecause a party cannot repudiate a contract it has already breached, if the landlord is found to have breached the lease in 2015, there can be no repudiation in 2021 … . * * *

From the dissent:

A party “cannot simultaneously pursue a breach of contract claim and an anticipatory breach claim premised on the same underlying conduct” … . However, where an obligation is ongoing or serial in nature, a subsequent material breach can support a claim on a theory of repudiation notwithstanding earlier claims for partial breach … . Audthan LLC v Nick & Duke, LLC, 2022 NY Slip Op 06880, First Dept 12-6-22

Practice Point: The majority held plaintiff could not seek redress on a theory of repudiation where there had been a breach of contract. There was a two-justice dissent.

 

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ALTHOUGH DEFENDANT PORT AUTHORITY OF NEW YORK AND NEW JERSEY (PANYNJ) WAS THE LESSOR OF THE PROPERTY WHERE PLAINTIFF WAS INJURED IN THIS LABOR LAW 241(6) ACTION, IT WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND, THEREFORE, WAS A PROPER DEFENDANT; ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, SHE WAS IN AN AREA USED TO CREATE MATERIALS FOR THE CONSTRUCTION SITE, WHICH IS COVERED BY THE LABOR LAW (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined Port Authority of New York and New Jersey (PANYNJ), although the lessor of the property where plaintiff was injured in this Labor Law 241 (1) action, was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Although plaintiff was not injured at the construction site, she was injured where materials were being prepared for use in the construction:

PANYNJ failed to establish its entitlement to summary judgment, as the record presents issues of fact as to whether PANYNJ was liable to plaintiff under Labor Law § 241(6). Although PANYNJ leased control of the property to RHCT and transferred responsibility for the maintenance of the terminal to RHCT, PANYNJ was nevertheless the owner of property for purposes of Labor Law § 241(6). The operating agreement between PANYNJ and RHCT permitted RHCT to use the property, and set out conditions on RHCT’s use of the property. The agreement also set forth the scope and manner of the work to be performed and provided that RHCT was required to provide PANYNJ with a monthly profit and loss report. The general manager for PANYNJ testified that RHCT was required to obtain PANYNJ’s consent to sublicense any portion of the property. Additionally, under the purchase order between Tutor Perini and TBTA, the owner of the bridge project, PANYNJ was to be paid a port security charge, among other charges.

As a result, the evidence created a sufficient nexus between PANYNJ and the project, and thus between PANYNJ and plaintiff, to support an imposition of liability under Labor Law § 241(6) … . Plaintiff’s task of grinding bevels on the deck panels to be installed on the bridge also falls under the Labor Law because the protections of the statute extend to areas where materials or equipment are being prepared to be used in construction … .Musse v Triborough Bridge & Tunnel Auth., 2022 NY Slip Op 06171, First Dept 11-3-22

Practice Point: Although defendant was a lessor of the property where plaintiff was injured in this Labor Law 241(6) action, it was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Even though plaintiff was not injured at the construction site, the Labor Law applies because she was injured in an area used to prepare materials for the construction site.

 

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