Right of Entry to Make Repairs Subjected Out-of-Possession Landlord to Liability in Trip and Fall Case

In Denermark v 2857 W. 8th St. Assoc., a trip and fall case, the Appellate Division, Second Department reversed a grant of summary judgment to defendants.

Plaintiff was injured when she “overstepped” a single step and caused her to trip and fall onto the adjacent sidewalk while exiting a building owned by defendant 2857 West 8th Street Associates and leased to the City of New York.

Initially, the court held that there was a triable issue of fact as to proximate cause. It reasoned:

Contrary to the defendants’ contentions, the plaintiff sufficiently identified the condition that caused her to “overstep” the step, since she alleged that the length of the step in relation to the door was insufficient.

Since it is undisputed that the door leaf, that is, the swing of the door, extended beyond the length of the step, the defendants failed to establish, prima facie, that this condition did not violate [NYC Admin. Code] § 27-371(h), which requires that “[t]he floor on both sides of all exit and corridor doors shall be … at least equal to the width of the door leaf.” Nor did the defendants establish, prima facie, that there was no causal connection between the violation and the plaintiff’s fall.

Next, the court rejected defendant West 8th Street’s argument that, as an “out-of possession landlord it had no duty to repair the condition on the premises.” It explained that:

An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs. Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition.

This was sufficient for liability:

In West 8th Street’s lease with the City, West 8th Street retained the right to re-enter the premises and repair the area at issue. Further, the condition on the premises constituted a violation of a statutory provision sufficient to impose liability upon West 8th Street.

The court concluded by nothing that “[a]lthough West 8th Street retained the right to repair the area at issue, this did not relieve the City, as tenant, of its common-law obligation to keep the premises reasonably safe,” and therefore “the City failed to establish, prima facie, that it did not owe the plaintiff that duty.”

As such, defendants’ motions for summary judgment should have been denied.

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