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Oral Lease Does Not Preclude A Summary Judgment Win For An Out-of-Possession Premises Landlord

January 6, 2021 • Posted By Joseph A. French • Insurance Coverage

Sawicka v. Schwimmer and Third-Party Action

             On appeal, the Second Department granted summary judgment to defendant, reversing the denial of same.

            Plaintiff, an employee of the third-party defendant, tripped and fell while she walked up stairs in defendant’s building.  Plaintiff had alleged that defendant was negligent because it had failed to maintain and repair the defective stairway.

            Defendant maintained he was an out-of-possession landlord, who had o duty to maintain or repair the defect, and he did not create one defect or even have notice of it.  An oral lease existed between the defendant and the third-party defendant.

            The defendant established that he was an out-of-possession landlord who was not bound by a contract to maintain the premises.  “Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition”.  (Gronski v. County of Monroe, 18 NY3d 374, 379).  However, an out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises “and has a duty imposed by statute or assumed by contract or a course of conduct”.

            Moreover, contrary to the plaintiff’s contention a defendant may establish, prima facie, that he or she was an out-of-possession landlord with evidence of the terms of an oral lease and contrary to the plaintiff’s contention, the statute of frauds (see General Obligations Law §5-703) does not render the subject oral lease void.  The oral agreement did not contemplate any specific lease term let alone a term exceeding one year.

            It is hard to believe that neither the defendant nor the third-party defendant thought to protect their interests through a lease.

            Fortunately, defendant, without a lease, it was easier to establish that it was an out-of-possession landlord without the lease.  The Court found that it did not earn a triable issue of fact.

Joseph A. French