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Leitch-Henry v. The Doe Fund (2nd Dep’t)

January 10, 2020 • Posted By Grant D. Zacharias • Insurance Coverage

In Janet Leitch-Henry v The Doe Fund, Inc. (2nd Dep’t 2019, 2019-06212), our firm successfully overturned a Kings County Supreme Court judge’s decision to deny our client The Doe Fund’s motion for summary judgment, and consequently awarded summary judgment in our client’s favor.

The plaintiff in the underlying action alleged she tripped and fell on a defect in the exterior of the property near the front entrance of a building in Brooklyn (noted by plaintiff and the Court to be on the “sidewalk”).  The building was owned by the plaintiff’s employer, who leased the basement to our client The Doe Fund.  Plaintiff filed a personal injury action against The Doe Fund, alleging negligence in connection with an alleged maintenance and repair obligation. 

The parties’ testimony confirmed that plaintiff did not report any issue with the property, either before or after the accident, to The Doe Fund, nor was it established that The Doe Fund created any alleged defect with the front entryway of the property or otherwise affected any repairs to this particular area of the property.  Moreover, the lease agreement between the building owner and The Doe Fund revealed that the tenant was only obligated to maintain and repair its leased premises and areas that were “adjacent to” such leased premises.  As a result, The Doe Fund filed a motion for summary judgment, which was denied by the Kings County Supreme Court after a (brief) oral argument.

On appeal, The Second Department noted that liability for a dangerous condition is predicated upon ownership, occupancy, control or special use of the property.  Ruffino v. New York City Tr. Auth., 55 A.D.3d 817, 818.  Further, a tenant of property abutting a public sidewalk “owes no duty to maintain the sidewalk in a safe condition.”  Martin v. Rizzatti, 142 A.D.3d 591, 592-593.   Liability cannot be imposed unless the lessee “created the condition, voluntarily but negligently made repairs, caused the condition to occur…or violated a [relevant] statute or ordinance.”  Id.

In the case at bar, not only did The Doe Fund have merely an obligation to maintain areas “adjacent to” the leased premises, but it did not otherwise cause or create the condition complained-of by plaintiff.  Since The Doe Fund did not create the alleged defect, make special use of the sidewalk, violate any applicable statute, or otherwise contract to maintain this precise area of the sidewalk/property where the accident occurred, and because plaintiff failed to raise a triable issue of fact with regard to these issues, the Second Department held that the Supreme Court should have granted The Doe Fund’s motion for summary judgment. 

Accordingly, the appellate court reversed the May 2, 2019 order denying The Doe Fund’s motion for summary judgment, on the law, and further held that summary judgment dismissing the plaintiff’s complaint was granted.

This result is an excellent one for our firm, as well as for commercial tenants who encounter claimants alleging dangerous conditions on areas of the property that are not explicitly contemplated by the lease (especially the sidewalk).  Unless a tenancy agreement specifically and entirely displaces the landowner’s general duty to maintain a sidewalk, this obligation remains with the owner.  See Paperman v. 2281 86th St. Corp., 142 A.D.3d 540.  The Second Department here reviewed the lease documentation and parties’ testimony and determined that the trial court should have found that The Doe Fund had no duty to maintain or repair the area in which plaintiff’s alleged accident occurred, an important recent decision about which personal injury practitioners should be aware.