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Fisher, Justice Presiding and Associate Justices Covello, Hall, and Sgroi
Arnold E. DiJoseph, III, for Plaintiffs-Appellants
Decided August 24, 2010
In this case the Plaintiff was severely injured in a fall on a badly broken concrete step in the rear of a single-family house. She sued the owner to recover damages for her personal injuries. The Supreme Court, however, granted a defense motion for summary judgment, and dismissed the case. The Plaintiff appealed and the Court held that genuine issues of material fact precluded summary judgment for the owner.
The premises were owned by the defendants and rented to a tenant. The defendants moved for summary judgment dismissing the complaint on the grounds that they were out-of-possession landlords who had neither actual nor constructive notice of the alleged defect, and that an oral agreement existed between them and the tenant by which the tenant agreed to be responsible for maintaining the premises and making repairs.
Generally, an out-of-possession landlord may be held liable for injuries caused by a defective or dangerous condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises in repair. Here, there was no lease or other written agreement between the defendants and the tenant to establish that the defendants were out-of-possession landlords who were absolved of their statutory duty to maintain the premises in good repair.
Section 27-2005 of the New York City Administrative Code requires the owner of a one- or two-family dwelling to keep the premises in good repair except as otherwise agreed to between the tenant and the owner of a dwelling, “by lease or other contract in writing.”
Here, the Appellate Division found that “the defendants admitted at their depositions that there existed only an oral agreement between them and the tenant, and that the tenant, who had been living in the premises for approximately seven years, did not have a lease or any other written agreement that set forth the terms of the alleged oral agreement concerning repairs.”
“A landowner moving for summary judgment in a premises liability case has the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.”
“Here, the defendants failed to establish, prima facie, that they did not have notice of the defective step which proximately caused the plaintiff to fall. At his deposition, the defendant…was shown a picture of the defective step, which the plaintiff testified fairly and accurately depicted the condition of the step as ‘broken’ and ‘damaged.’ After examining the photo, [defendant] did not recall whether the step was broken when he last saw it approximately 10 to 15 years ago. Since we find, based on the record, that the defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion for summary judgment dismissing the complaint should have been denied.”
As a result of this decision, the Plaintiff’s case was reinstated.
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