Cellar Door Personal Injury Case Continues; Defendant Failed to Establish That it Was an Out-of-Possession Landlord

In Elsayed v. Al Farha Corp., 2015 NY Slip Op 07813, 132 AD3d 942 (App. Div. 2nd Dept. Oct. 28, 2015), the Second Department affirmed the denial of defendant’s motion for summary judgment.

Plaintiff alleged that he fell into opened sidewalk cellar doors of a building owned by defendant T&T Steinway, LLC, from which defendant tenant Al Farha Corp. leased the street-level commercial space adjacent to the cellar doors.

The law:

An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition. That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others. Accordingly, a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property.

The court held that the landlord, T&T, failed to demonstrate its prima facie entitlement to judgment as a matter of law:

Here, T&T’s submissions in support of its motion for summary judgment included a copy of its lease with Al Farha, which specifically provided that the demised premises did not include the cellar. Thus, the lease demonstrated that T&T retained control over the cellar. Further, the deposition testimony of a member of T&T demonstrated that T&T was responsible for repair of the cellar doors, and that it used a portion of the cellar for its own storage purposes. Under these circumstances, the Supreme Court correctly determined that T&T failed to establish, prima facie, that it was an out-of-possession landlord.

Contrary to T&T’s contention, it also failed to establish, prima facie, that the condition that allegedly caused the accident was open, obvious, and not inherently dangerous. T&T’s submissions failed to eliminate triable issues of fact as to whether the open cellar doors were lying flat on the ground, and as to whether the opening was hidden by grocery merchandise and furniture.

Further, T&T failed to establish, prima facie, that it did not create the alleged dangerous condition, or have actual or constructive notice of the condition.

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