After tripping and falling purportedly due to broken and uneven concrete on a loading dock at his workplace—a supermarket operated by Hatzlacha Supermarket, Inc., in a building owned by MBC LLC—JH filed a personal injury case with the Kings County Supreme Court.
When MBC later moved for pre-trial relief in its favor (via a motion for summary judgment seeking dismissal of the complaint), it alleged it was an out-of-possession landlord and thus wasn’t liable for JH’s injuries. However, the judge assigned to the matter disagreed and denied the dismissal request.
On appeal, the Appellate Division, Second Department, noted that an out-of-possession landlord is usually not liable for injuries on its premises unless it retains control and has a duty imposed by statute, contract, or conduct. Since the complaint was based on common-law negligence and didn’t allege a statutory violation, MBC could only be held responsible if it had a contractual or conduct-based duty to maintain the loading dock.
As the lease's language was ambiguous in that regard, and conflicting deposition testimonies from Hatzlacha's general manager and MBC’s owner left unresolved who was responsible for the dock's maintenance, MBC was unable to establish, prima facie, that it had no such obligation. MBC also did not demonstrate it had relinquished control over the premises to such an extent that any maintenance-related duty had been extinguished.
Additionally, given the duration of the concrete’s condition, because JH raised a triable issue of fact regarding whether MBC had constructive notice of the defect, the Appellate Division affirmed the denial of summary judgment and allowed JH’s claims to continue.
Ironically, MBC lacked concrete evidence here?
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DECISION