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Another Out-Of-Possession Case
by Ron Davis

Proof that the customer is not always right.

Case in point: A customer of a New York shopping center has failed in her allegation that the center’s principals are liable for a mishap that she suffered on center property. She also attempted to blame the center’s principals for negligence in failing to foresee that an accident such as the one she endured could occur.

The shopping center is Dawn Estates, and the mishap occurred when the customer arrived at the shopping center, parked her automobile in the parking area there, disembarked and walked toward an entrance to the center.

As she neared that selected entrance, she approached a step-up that led from the parking roadway onto a paved sidewalk. When she did, she apparently failed to negotiate that step-up that would take her to the center entrance. She then tripped and fell, apparently suffering an injury or injuries. And she blamed the principals of Dawn Estates Shopping Center for her accident.

In her resulting lawsuit, she claimed that those principals were responsible because they had leased the shopping center from its owners. And she added that lease with the owners included the parking area where she fell.

The Dawn Estates principals responded to the lawsuit by rejecting the charges against them. They pointed out that they are “out-of-possession landlords” and therefore are not liable for injuries that occur at the shopping center. Specifically, they added, are they also are not responsible for any injuries that occur in the center parking area. On those grounds, they asserted, any lawsuits would have to be classified as “unproductive.”

And the Appellate Division of the New York Supreme Court agreed with the Dawn Estates principals. The court explained that an out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is “contractually or statutorily obligated to repair or maintain the premises by virtue of a course of conduct.”

Added the court, “Here, in support of the motion for summary judgment dismissing the complaint, the Dawn Estates defendants established, prima facie, that they were out-of-possession landlords with no duty to repair or maintain the subject parking lot, such that liability could not be imposed upon them in this legal action.”

Finally, the Court said, “In opposition, the plaintiff (the injured woman) failed to raise a triable issue of fact.”

(Duggan v. Cronos Enterprises, Inc. N.Y.3d 2015 ((WL 6705310 (((mem))), 2015 N.Y. Slip Op.07947)

Decision: November 2015
Published: November 2015



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