You are here: / Landlord-Tenant
, ,

Summary Judgment Properly Granted to Property Owner in Lead-Paint-Injury Case

The Fourth Department determined the property owner was entitled to summary judgment in a lead-paint-injury case.  There was no showing defendant had notice of the presence of lead paint hazard or that defendant was negligent in abating the lead paint hazard:

“In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” … . We conclude that plaintiffs failed to meet their initial burden of establishing that defendants had actual or constructive notice … . Faison v Luong, 2014 NY Slip Op 07794, 4th Dept 11-14-14

 

,

Effects of Taking Property “As Is,” the Implied Covenant of Fair Dealing, and Constructive Eviction Discussed

Plaintiff-tenant took possession of the leased premises “as is.” Subsequently plaintiff stopped paying rent claiming that the condition of the elevator prevented the issuance of a certificate of occupancy.  In denying both parties’ motions for summary judgment (because plaintiff failed to show the condition of the elevator was the reason for the denial of the certificate of occupancy; and because the defendants failed to show it properly maintained the elevator), the Second Department explained the relevant contract principles:

A court’s fundamental objective in interpreting a contract is to determine the parties’ intent from the language employed and to fulfill their reasonable expectations … . “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . Thus, “[i]t is the role of the courts to enforce the agreement made by the parties—not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction” … .

Moreover, “[i]mplicit in every contract is a covenant of good faith and fair dealing, which encompasses any promise that a reasonable promisee would understand to be included” … . “The implied covenant of good faith and fair dealing is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement” … . * * *

…[T]he fact that the plaintiff agreed to take possession of the leased premises in “as-is” condition does not necessarily warrant the conclusion that the plaintiff intended to waive any claims with respect to the portions of the building that were not leased to him, or to waive the landlord’s obligation to maintain the elevator. The defendants … argued that the provision of the lease which required them to “maintain the current elevator services and maintain and repair the elevator in reasonable condition” only obligated them to prevent any deterioration in the elevator service existing on the date that the parties entered into the lease. However, in light of the implied covenant of good faith and fair dealing, a reasonable tenant could interpret that provision as obligating the landlord to maintain the elevator free from violations and to promptly perform repairs, particularly if failing to do so could prevent the tenant from obtaining a certificate of occupancy for the leased premises. …

[Re: the defendants-landlords’ motion for summary judgment to recover unpaid rent:] “The obligation of a commercial tenant to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services” … . Before a tenant may withhold rent, the tenant must prove actual or constructive eviction … . To demonstrate constructive eviction, then, a tenant must vacate the premises … . Here, the defendants’ submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted. Prakhin v Fulton Towers Realty Corp, 2014 NY Slip Op 07487, 2nd Dept 11-5-14

 

,

Re: a Slip and Fall in a McDonald’s Restaurant, the McDonald’s Defendants Were Not Liable as an Out-of-Possession Landlord, a Franchisor, or a Property Owner—Summary Judgment Properly Granted

In dismissing a slip and fall complaint against the McDonald’s (restaurant) defendants, the Second Department explained that the defendants could not be held liable as an out-of-possession landlord, a franchisor, or as an entity responsible for a dangerous condition on the property:

The McDonald’s defendants established, prima facie, that McDonald’s Corporation was an out-of-possession landlord on the date of the subject accident, and that it had no duty to maintain or repair the leased premises where the accident occurred. Therefore, the McDonald’s defendants met their initial burden of establishing that McDonald’s Corporation owed no duty to the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, McDonald’s Corporation was not liable based upon its status as a franchisor. In determining whether a defendant, as a franchisor, may be held vicariously liable for the acts of its franchisee, the most significant factor is the degree of control that the franchisor maintains over the daily operations of the franchisee or, more specifically, the manner of performing the very work in the course of which the accident occurred … . Here, the McDonald’s defendants tendered sufficient evidence in support of their motion to establish, prima facie, that McDonald’s Corporation lacked the requisite control over the alleged causes of the plaintiff’s injuries. The plaintiff failed to raise a triable issue of fact in opposition.

In addition, the Supreme Court correctly granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant McDonald’s Restaurants of New York, Inc. Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property … . The McDonald’s defendants established, prima facie, that McDonald’s Restaurants of New York, Inc., did not own, occupy, control, or have a special use of the subject property at the time of the accident and, thus, could not be held liable for injuries caused by the allegedly dangerous conditions … . Khanimov v McDonald’s Corp, 2014 NY Slip Op 07332, 2nd Dept 10-29-14

 

,

Questions of Fact Raised About Whether Access to a Flat Roof through a Window and a Fall from the Roof Into an Unprotected Air Shaft Were Foreseeable

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined there were questions of fact about whether the applicable regulations and codes required that there be a railing around an air shaft, and whether it was foreseeable that plaintiff would gain access to the flat roof through a window and fall into the shaft.  The opinion includes a detailed description of the relevant building regulations.  With respect to foreseeability, the court wrote:

It is well settled that, as landowners, defendants have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances” … . The existence and scope of this duty is, in the first instance, a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks … .

The focus of our inquiry, therefore, is whether it was foreseeable that defendants' tenants and their guests would access the setback roof and be exposed to a dangerous condition from the absence of a railing or guard around the air shaft. * * *

…[H]ere, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. … Here, the tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof. On this record …reasonable minds could differ as to whether plaintiff's use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground. Powers v 32 E 31 LLC, 2014 NY Slip Op 07084, CtApp 10-21-14

 

, ,

Landlord May Not Withhold Consent for Continued Operation of a Sidewalk Cafe Where the Lease Contemplated the Operation of the Cafe (Which Had Been in Operation for 50 Years) and Where the Implied Covenant of Good Faith and Fair Dealing Restricted the Landlord’s Ability to Withhold Consent/Erroneous Stipulated Fact Does Not Bind the Appellate Court

The First Department, in a full-fledged opinion by Justice Acosta, determined that a landlord could not terminate the tenant’s operation of a sidewalk cafe because the lease contemplated that use and the implied covenant of good faith and fair dealing restricted the landlord’s ability to deny consent to the continued operation of the cafe.  [The underlying ruling was made on stipulated facts which included the erroneous “fact” that the lease did not include the cafe as part of the leased premises.  The First Department noted that it is not bound on appeal by an incorrect stipulation of fact]:

The question presented on appeal is whether a landlord has an unfettered right to withhold or terminate its consent to a tenant’s operation of a sidewalk café, where the café has existed for at least 50 years and the lease contemplates the use of the sidewalk for that purpose. We hold that defendants may not withhold or terminate their consent, irrespective of whether they have a good-faith basis for doing so, because the lease expressly and unequivocally requires them to consent to plaintiff’s operation of the sidewalk café. In any event, we find that the implied covenant of good faith and fair dealing would otherwise restrict defendants’ ability to deny consent, and that they have failed to make a satisfactory showing of good faith in this case. * * *

Having determined that the lease allows plaintiff to use and occupy the sidewalk for the operation of a sidewalk café, it necessarily follows that defendants cannot withhold or revoke their consent to that use absent a good-faith basis. As the Court of Appeals has explained, “In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship, they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included” (511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 153 [2002] [internal citations and quotation marks omitted]).

Because the stipulated facts demonstrate that the sidewalk café existed at the time of the lease’s execution, plaintiff (through its assignor) was justified in understanding that the landlord promised to refrain from unreasonably withholding its consent to operate the sidewalk café. DMF Gramercy Enters Inc v Lillian Troy 1999 Trust, 2014 NY Slip Op 07110, 1st Dept 10-21-14

 

,

Out-of-Possession Landlord Not Liable Based Upon Right to Enter Premises to Make Repairs But May Be Liable as the Creator of the Dangerous Condition

In a case stemming from a fall from an allegedly defective ladder that was installed to gain access to a loft, the Third Department determined that an out-of-possession landlord was not liable based on a contractual reservation of the right to enter the premises to make repairs, but a question of fact had been raised about whether the out-of-possession landlord created the dangerous condition:

…[D]efendants were entitled to summary judgment as to the question of whether they were liable for plaintiff’s injuries based upon the provision in the lease retaining their right to enter the premises to make repairs. While a landlord who retains the right to enter the leased property to make repairs may be liable to injuries to third parties …, “only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord” … . Here, plaintiff’s expert opined that the condition of the ladder violated regulations found in the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), the New York State Building Code and the Property Maintenance Code of New York. However, inasmuch as a violation of a regulation is insufficient to impose liability on an out-of-possession landlord pursuant to a reserved right to enter the premises …, plaintiff failed to raise a triable issue of fact.

We reach a different conclusion, however, as to whether defendants created the dangerous condition. Liability to a lessee’s employee for personal injuries may attach if the out-of-possession landlord affirmatively created the dangerous condition … . Although the former tenant hired an architect to design the plans for the premises, including the loft area and access ladder, defendants contracted and paid for the construction. Further, the record reflects that defendants took an active role in the construction project. Defendants and the tenant agreed to make changes to the architectural plans in order to cut costs, including changes to the design of the loft. While the architectural plan called for the ladder to be “mechanically fasten[ed] to surface of floor slab and at top edge to wood platform,” plaintiff’s expert opined, based upon his inspection of the site of the alleged accident, that the right stringer of the ladder was secured by three screws to an adjacent wall, not to the wood platform, and that the left stringer was not secured to the upper landing at all. Further, there was no evidence that the ladder was secured to the floor slab. Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition … . Boice v PCK Dev Co LLC, 2014 NY Slip Op 07042, 3rd Dept 10-16-14

 

, ,

Corporations Owned by the Individual Operating the Businesses Were Not the “Alter Ego” of the Individual Owner—Criteria for Piercing the Corporate Veil Not Met—Corporation Which Leased the Property from the Corporation Which Owned the Property Was Entitled to Compensation for Fixtures

The Second Department determined there was insufficient evidence to support piercing the corporate veil with respect to corporations owned by the individual operating the relevant businesses.  The corporations were formed for legitimate purposes, including owning and leasing back the subject property, and there was no evidence of any fraud.  The relevant criteria were explained.  In addition, the Second Department determined the tenant corporation was entitled to compensation for the fixtures on the condemned property and explained the relevant criteria:

In general, “a corporation has a separate legal existence from its shareholders even where the corporation is wholly owned by a single individual” … . Although “[o]ne of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals” …, “the doctrine of piercing the corporate veil allows a corporation's separate legal existence to be disregarded to prevent fraud and achieve equity” … . “A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff” … .

Here, the petitioner points to Botur's sole ownership of Tennisport and his acknowledged day-to-day control over Nixbot, and argues that, on this basis, the Supreme Court properly determined that Tennisport and Nixbot were essentially Botur's alter egos. However, as this Court has observed, “if, standing alone, domination over corporate conduct in a particular transaction were sufficient to support the imposition of personal liability on the corporate owner, virtually every cause of action brought against a corporation either wholly or principally owned by an individual who conducts corporate affairs could also be asserted against that owner personally, rendering the principle of limited liability largely illusory. Thus, the party seeking to pierce the corporate veil must also establish that the owners, through their domination, abused the privilege of doing business in the corporate form'” … . Thus, in determining whether an owner has “abused the privilege of doing business in the corporate form,” a court may consider, inter alia, whether there was a “failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use” … . * * *

Where the condemnor appropriates land to which a tenant has annexed fixtures, the tenant is entitled to compensation “for his [or her] interest in any annexations to the real property which but for the fact that the real property has been taken, he [or she] would have had the right to remove at the end of his [or her] lease” … . This is true even where the condemnor has no use for the fixtures attached, because “condemnation is a forced sale that places the State and the claimant in the position of vendee and vendor” … . As the Court of Appeals has observed, “[t]he law of fixtures was evolved by the judiciary in order to ameliorate the harsh result to those who substantially improved property but who had less than a fee interest. These rules, when applied in an eminent domain proceeding, protect the owner of this type of property from being deprived of compensation when the land upon which they are situated is condemned” … . Thus, an award for the taking of fixtures is properly seen as “just compensation to the claimant, not a windfall” … . Matter of Queens W Dev Corp…, 2014 NY Slip OP 06983, 2nd Dept 10-15-14

 

, , , ,

The Language of the NYC Rent Control Law, Unlike the Language of the NYC Rent Stabilization Law, Does Not Allow “Luxury Deregulation” After the Expiration of J-51 Tax Benefits

The First Department, in a full-fledged opinion by Justice Sweeny, determined that the relevant provision of the NYC Rent and Rehabilitation Act (Rent Control Law or RCL) could not be interpreted to allow “luxury deregulation” of a rent-controlled apartment upon the expiration of “J-51” tax benefits.  “Luxury deregulation” refers to the removal of rent controls where the tenant can afford to pay market rates. The opinion focused upon the wording of the Rent Stabilization Law (RSL) versus the wording of the Rent Control Law (RCL) .  The RSL specifically allows the owner of an apartment to apply for luxury deregulation upon the expiration of the J-51 tax benefits, while the RCL (the controlling regulation here) does not.  The opinion includes a discussion of court-review of an administrative agency’s interpretation of a statute where specialized knowledge is not involved, and statutory-interpretation criteria:

At the outset, we note that the question before us turns purely on statutory interpretation. As such, we need not defer to the agency’s interpretation of the statutes in question, as we are not called upon “to interpret a statute where specialized knowledge and understanding of underlying operational practices or . . . an evaluation of factual data and inferences to be drawn therefrom’ is at stake” … . * * *

The owner argues that the rationale of [the RSL] should also apply to apartments subject to rent control, because, inter alia, to hold otherwise would be inconsistent with the purpose of the luxury deregulation law, which attempted to “restore some rationality to a system which provides the bulk of its benefits to high income tenants” … . We are not unmindful that the legislative history indicates a preference not to have people who can easily afford market value rental property inhabit rent-regulated housing. However, this history does not offer sufficient evidence to alter the unambiguous language of Administrative Code § 26-403(e)(2)(j). To do so would require us to import new language into the RCL and “give it a meaning not otherwise found therein” … . Indeed, “where the language of a statute is clear, there is little room to add to or take away from that meaning'” … . If the application of such long-established principles of statutory construction produces “an undesirable result, the problem is one to be addressed by the Legislature” … . Matter of RAM I LLC v NYS Div of Hous & Community Renewal, 2014 NY Slip Op 06784, 1st Dept 10-7-14

 

, ,

Term “Entrustment” in a Policy Exclusion (In the Context of Entrustment of Property to Another) Interpreted to Encompass Entire Leased Premises

The First Department determined that preclusion of coverage for “dishonest or criminal acts” committed by persons to whom the subject property was “entrusted” encompassed the removal of fixtures from premises leased by the insured:

Plaintiffs leased the insured premises to a tenant, which converted the premises into a youth hostel, removed the kitchen cabinets and appliances to turn the kitchens into additional dormitory areas, and, when the hostel closed, did not return the cabinets or appliances … . Plaintiffs argue that the term “entrustment” in the policy pertains solely to chattels and not to fixtures … . However, in Abrams v Great Am. Ins. Co. (269 NY 90, 92 [1935]), the Court of Appeals explained that an insurance contract’s language “must be given its ordinary meaning,” and “common words” in a policy such as entrusted are not “used as words of art with legalistic implications” (id.). Accordingly, Abrams taught, when a contract indicates that the property is entrusted, it can be understood that the parties mean that possession of property is willingly “surrender[ed] or deliver[ed] or transfer[red],” to be “used for the purpose intended by the owner . . . . The controlling element is the design of the owner rather than the motive of the one who obtained possession” (id.). Here, we find that the terms of the policy at issue do not limit what can be entrusted, that property may be entrusted to another under a triple net lease agreement, and that the entrustment refers to the entirety of the premises unless otherwise specified.  Lexington Park Realty LLC v National Union Fire Ins Co of Pittsburgh PA, 2014 NY Slip Op 05817, 8-14-14

 

,

Building Owner Entitled to Summary Judgment in Slip and Fall Case Based Upon Tracked In Water (Inclement Weather)–Tenant Ordinarily Does Not Have a Duty of Care Re: Common Areas

The Second Department determined the building owner was entitled to summary judgment in a slip and fall case based upon water tracked in during inclement weather.  The court noted that a tenant does not have a duty of care with respect to the condition of common areas of the building:

“In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . Moreover, a property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather …, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation … . A tenant ordinarily owes no duty of care with respect to a dangerous condition in a common area of a building … .

The owner and the tenant, on their respective motions, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. In support of their motions, the owner and the tenant each presented evidence that it had not created the alleged defective condition. The owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, i.e., the alleged presence of water on the vestibule floor of the subject building. Paduano v 686 Forest Ave LLC, 2014 NY Slip Op 05415, 2nd Dept 7-23-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy