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CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the class action complaint by tenants alleging the failure to provide rent-stabilized leases should not have been dismissed at the pre-answer stage:

“Pursuant to CPLR 902, a motion to determine whether a class action may be maintained is to be made within 60 days after the time to serve the responsive pleading has expired” … . Because the time to make such a motion had not occurred, it was premature, in this case, for the court to engage in a detailed analysis of whether the requirements for class certification were met … .

It does not appear conclusively from the complaint that, as a matter of law, there is no basis for class action relief… . For example, plaintiffs allege that some defendants receive J-51 tax benefits and are therefore required to provide tenants with rent-stabilized leases but failed to do so. This claim was also made in Borden (see 24 NY3d at 390), and the Court of Appeals found that the plaintiffs satisfied the class action requirements of numerosity, predominance of common issues of law or fact, typicality of the named plaintiffs’ claims, adequate representation, and superiority of class action versus other methods (see id. at 399-400).

Although the instant action involves 11 buildings and 8 owners, all the buildings are allegedly managed by Big City Realty Management, and all the owners are allegedly part of one holding company, Big City Acquisitions. Moreover, Downing — another putative class action about J-51 (see 107 AD3d at 88) — involved “a residential complex owned by defendants” (id.). Maddicks v Big City Props., LLC, 2018 NY Slip Op 05523, First Dept 7-26-18

CIVIL PROCEDURE (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/CPLR 902 (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/LANDLORD-TENANT (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, (CLASS ACTION COMPLAINT BY TENANTS AGAINST LANDLORDS ALLEGING FAILURE TO PROVIDE RENT-STABILIZED LEASES SHOULD NOT HAVE BEEN DISMISSED AT THE PRE-ANSWER STAGE (FIRST DEPT))

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CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint adequately pled a class action concerning defendants-landlords’ alleged mishandling of security deposits, including allegations of conversion and co-mingling:

… [P]laintiffs adequately alleged all of the prerequisites to class certification… . Plaintiffs alleged that the class of tenants consists of more than 200 members, thereby satisfying the numerosity requirement … . Plaintiffs also alleged that the common issue is whether, by commingling the security deposits of their tenants, defendants acted unlawfully, and that the individual issues are the amount of the security deposit and defendants’ entitlement to deductions therefrom… . Thus, we conclude that plaintiffs sufficiently alleged that the common issues predominate (see CPLR 901 [a] [2]). Regarding the typicality requirement, plaintiffs alleged that their claims arise from “the same course of conduct and are based on the same theories as the other class members” … . Plaintiffs also alleged that they can fairly and adequately protect the interests of the class inasmuch as they do not have conflicting interests with other class members.. . Plaintiffs satisfied the superiority requirement by alleging that the damages likely suffered by each of the tenants range between $475 and $4,500, and “the cost of prosecuting individual actions would deprive many of the putative class members of their day in court” … . …

… [T]the amended complaint adequately alleges a cause of action for conversion in violation of General Obligations Law § 7-103 … . …

… [T]he court erred in granting the motion with respect to the second cause of action, alleging that defendants violated Property Conservation Code of the City of Syracuse § 27-125, inasmuch as that section gives rise to a private cause of action … . …

…[T]the lease includes a clause requiring tenants to pay attorneys’ fees if they breach the lease and, pursuant to Real Property Law § 234, the tenant has the “same benefit [to attorneys’ fees as] the lease imposes in favor of the landlord” … . Rubman v Osuchowski, 2018 NY Slip Op 05416, Fourth Dept 7-25-18

CIVIL PROCEDURE (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/LANDLORD-TENANT  (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/MUNICIPAL LAW (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/REAL PROPERTY LAW  (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/CONVERSION (CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

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TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner did not demonstrate the tenant, Cohen, violated a court order directing Cohen to pay his rent directly to the petitioner, who had a judgment against Cohen’s landlord. The court order required that Cohen pay any rent due under the lease to petitioner (CPLR 5225). However, the landlord terminated Cohen’s lease. Therefore Cohen did not not violate the order and should not have been held in civil contempt:

Here, the petitioner failed to establish that Cohen disobeyed the … order, which required him to “pay rent to petitioner as due under the lease” … . J…  Since Cohen’s lease … expired on July 31, 2015, on August 1, 2015, Cohen became a holdover tenant. Damages attributable to Cohen’s continued occupation of the premises were not due “under the lease,” but rather, were due as use and occupancy for the reasonable value of the premises … . “The obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant” … . “Rather, an occupant’s duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intention of the parties” … . Accordingly, the motion to hold Cohen in contempt should have been denied. Matter of First Am. Tit. Ins. Co. v Cohen, 2018 NY Slip Op 05306, Second Dept 7-18-18

CIVIL PROCEDURE (DEBTOR-CREDITOR, CONTEMPT, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))/CPLR 5225 (DEBTOR-CREDITOR, CONTEMPT, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))/DEBTOR-CREDITOR (CONTEMPT, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))/CPLR 5225 (DEBTOR-CREDITOR, CONTEMPT, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))/LANDLORD-TENANT (CONTEMPT, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))/CPLR 5225 (DEBTOR-CREDITOR, CONTEMPT, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))/CONTEMPT (DEBTOR-CREDITOR, LANDLORD-TENANT, TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT))

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CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT).

The Third Department determined that municipal code provisions requiring a rental permit and limiting the occupancy of rental units to a “family” as defined in the code were not unconstitutionally vague:

The record therefore reflects that the rental occupancy restriction was enacted to, among other things, serve a legitimate governmental interest in diminishing public nuisances created from the overcrowding of dwelling units occupied by transient residents … . Because the ordinance does not favor certain types of families over others, or restrict the size of unrelated persons living as a functionally equivalent family without also restricting the size of a traditional family, it does not suffer from the same constitutional infirmities as the ordinances in McMinn v Town of Oyster Bay (66 NY2d at 549) or Baer v Town of Brookhaven (73 NY2d 942, 943 [1989]). Moreover, the ordinance here contains objective criteria for rebutting the presumption that four or more persons living together in a single dwelling unit who are unrelated by blood, marriage or legal adoption do not constitute the functional equivalent of a traditional family … , and the occupancy restriction bears a reasonable relationship to the goals sought to be achieved by the ordinance. In light of the foregoing, plaintiffs have not established that the challenged provisions of the ordinance are unconstitutional … . Grodinsky v City of Cortland, 2018 NY Slip Op 05236, Third Dept 7-12-18

MUNICIPAL LAW (LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/LANDLORD-TENANT (MUNICIPAL LAW, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))

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FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT).

The First Department noted that contract provisions cannot be the bases for a fraudulent inducement cause of action. Only matters collateral to the contract will support fraudulent inducement:

Plaintiffs alleged six different bases for the fraudulent inducement claim. The alleged misrepresentations regarding assistance operating the preschool, the working fire alarm, and use of the stroller area, area near the kitchen, and upstairs gym, are all ” directly related to a specific provision of the contract,'” not collateral to the lease, and cannot be used to sustain a fraudulent inducement claim … . Plaintiffs properly pled a fraudulent inducement claim with respect to defendants materially misrepresenting that a 2004 letter of no objection was all plaintiffs would need, failing to disclose to plaintiffs that defendant intended to remove oversight over homeless individuals on the property, and fraudulently misrepresenting that homeless individuals were living on the property legally, when they were doing so illegally … . Plaintiffs properly pled that, as a result of these statements, which plaintiffs allege were made with the intention to deceive them, they signed the lease and developed the property … . Iken v Bohemian Brethren Presbyt. Church, 2018 NY Slip Op 04830, First Dept 6-28-18

FRAUD (FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT))/CONTRACT LAW (FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT))/LANDLORD-TENANT (LEASE, CONTRACT LAW, FRAUDULENT INDUCEMENT CAUSE OF ACTION MUST BE BASED UPON MATTERS COLLATERAL TO THE CONTRACT, NOT THE BREACH OF PROVISIONS OF THE CONTRACT ITSELF (FIRST DEPT))

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TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT)

The Second Department determined defendant landlord’s motion for summary judgment in this negligence action by a tenant was properly denied. Plaintiff was injured attempting to move a heavy radiator that was in the common area outside his apartment. Plaintiff’s family members had complained that the radiator obstructed the path from the apartment to the staircase, but the radiator had remained there for months:

… [T]he defendant landlord moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff’s conduct was the sole proximate cause of the accident. …

The defendant landlord failed to establish, prima facie, that it was not foreseeable that the plaintiff would attempt to move the heavy radiator and that the plaintiff’s conduct constituted a superseding and intervening act which severed any nexus between the defendant landlord’s alleged negligence and the plaintiff’s injuries … . Munoz v Kiryat Stockholm, LLC, 2018 NY Slip Op 04552, Second Dept 6-20-18

​NEGLIGENCE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SOLE PROXIMATE CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SUPERSEDING CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/FORESEEABILITY (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))

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TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over an extensive dissenting opinion, determined the Division of Housing and Community Renewal (DHCR) properly counted only the resident’s income, and not her husband’s income, for purposes of her eligibility for rent control. Her husband had moved to a nursing home:

Petitioner’s main contention is that because, under federal tax law, a joint tax return results in joint tax liability attributable to both filers … , under the RCL [rent control law], tenant’s federal AGI [adjusted gross income] cannot be apportioned and therefore her total annual income exceeds the income threshold. Petitioner offers no sound explanation why federal income tax liability should be outcome determinative of how DHCR interprets and applies the RCL. …

To be sure, RCL … characterizes annual income as the federal AGI. The statute also provides that total annual income is calculated as the “sum” of the annual incomes of all those “who occupy the housing accommodation as their primary residence” … . To read the statute as petitioner and the dissent suggest would mean that total annual income may include those persons who do not occupy the housing accommodation as their primary residence. “Such a construction, resulting in the nullification of one part of the [statute] by another,’ is impermissible, and violates the rule that all parts of a statute are to be harmonized with each other” … . Matter of Brookford, LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 04381, CtApp 6-14-18

LANDLORD-TENANT (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/ADMINISTRATIVE LAW (RENT CONTROL, TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/RENT CONTROL (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/DIVISION OF HOUSING AND COMMUNITY RENEWAL (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))

OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFECT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT).

The First Department determined repair of the type of defect at issue was not the responsibility of the out-of-possession landlord:

Plaintiff seeks damages for injuries he sustained when one of the cellar doors he had opened to take garbage up to the sidewalk from the restaurant where he was employed snapped back and struck him on the back of the head. …

Although defendant Foreign Development Service, Ltd. was an out-of-possession landlord with the right to reenter the leased premises to inspect or repair, the alleged defect in the cellar doors, i.e., rusty hinges and no device, such as a bar, to hold the doors open, was not a structural defect contrary to a specific statutory safety provision … . Cuthbert v Foreign Dev. Serv., Ltd., 2018 NY Slip Op 03812, First Dept 5-29-18

​LANDLORD-TENANT (OUT OF POSSESSION LANDLORD, DUTY TO REPAIR, OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFENDANT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT))/PREMISES LIABILITY (OUT OF POSSESSION LANDLORD, DUTY TO REPAIR, OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFENDANT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT))

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OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the out-of-possession landlord (Bagga) was properly granted summary judgment in this slip and fall case:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at the entrance of a grocery store operated by the defendant 63-28 99th St. Farm Ltd., located on premises owned by the defendant Dasshan S. Bagga. …

“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, where the complaint sounds in common-law negligence and the plaintiff does not allege the violation of a statute, Bagga demonstrated his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by establishing that he was an out-of-possession landlord who was not bound by contract or course of conduct to maintain the premises… . The mere reservation of a right to reenter the premises to make repairs does not impose an obligation on the landlord to maintain the premises … . Fuzaylova v 63-28 99th St. Farm Ltd., 2018 NY Slip Op 03506, Second Dept 5-16-18

​NEGLIGENCE (LANDLORD-TENANT, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))/OUT-OF-POSSESSION LANDLORD (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT,  OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))

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TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s injury from a fall on a staircase was not covered by the “additional insured” provision of the subject policy. Yeshiva leased property in a building owned by Beth Medrash. Beth Medrash was listed as an additional insured in Yeshiva’s insurance policy. The staircase where plaintiff fell was not leased by Yeshiva:

The additional insured provision named Beth Medrash as an additional insured “only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the Yeshiva].” The phrase “arising out of” requires “only that there be some causal relationship between the injury and the risk for which coverage is provided” … . “An insurer does not wish to be liable for losses arising from risks associated with . . . premises for which the insurer has not evaluated the risk and received a premium” … . Moreover, “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning”… . The interpretation of policy language is a question of law for the court … .

On his motion for summary judgment, the plaintiff failed to establish, prima facie, that the policy provided coverage to Beth Medrash as an additional insured for his injury. It is undisputed that the Yeshiva did not lease the staircase the plaintiff was descending when he fell, and that the plaintiff was not a student or invitee of the Yeshiva at the time of the accident. Therefore, there was no causal relationship between the plaintiff’s injury and the risk for which coverage was provided … . Consequently, the plaintiff’s injury was not a bargained-for risK … . Lissauer v GuideOne Specialty Mut. Ins., 2018 NY Slip Op 03522, Second Dept 5-16-18

​INSURANCE LAW (TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))/LANDLORD-TENANT (INSURANCE LAW, TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))/ADDITIONAL INSURED (LANDLORD-TENANT, TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, INSURANCE LAW, TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))

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