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Out of Possession Landlord's Summary Judgment Award Confirmed by 2nd Department

September 25, 2013 • Posted By Joseph A. French • Complex Litigation, Trial Practice

The Second Department recently affirmed Queens Supreme Court Justice Taylor’s decision granting summary judgment to an out of possession landlord.See Dulce Castillo v. Wil-Cor Realty Co., Inc. 2013 NY Slip Op 05871

Plaintiff tripped and fell in a parking lot due to an alleged defect.  Her employer leased the parking lot from defendant.  Defendant asserted it was an “out of possession landlord”, and thus it could not be held liable for plaintiff’s injuries. “An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct.”

The Court determined the “defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation.”  Because plaintiff failed to raise a triable issue of fact, the lower court’s decision was affirmed.

In passing, we note the Court’s dicta regarding plaintiff’s expert.  “The fact that the plaintiff’s expert was not disclosed until seven months after the filing of the Note of Issue, and his affidavit was submitted only in response to the defendant’s motion for summary judgment, does not, in and of itself, render the disclosure untimely (see Rivers v. Birnbaum, 102 AD3d 26, 39).  However, the expert’s opinion, as set forth in the affidavit, was speculative, conclusory, and insufficient to raise a triable issue of fact (see Mejia v. Era Realty Co. 69 AD3d 816; Banks v. Freeport Union Free Schood Dist., 302 AD2d 341)”.  This position signals the continuing shift in the Second Department from earlier decisions that had refused to consider a plaintiff’s expert affidavit when plaintiff had disclosed the expert prior to filing her note of issue.