Court Dismisses Plaintiff’s Complaint as to Out-of-Possession Landlord in Case Involving a Trip and Fall Over a Temporary Aluminum Floor Tile

In a decision dated March 12, 2021, the Honorable Richard G. Latin of Supreme Court, New York County granted summary judgment on behalf of our clients, defendants 369 Lexington Borrower, LLC and 369 Lexington Borrower II, LLC (“369 Lex”), dismissing all claims against them as a matter of law. The action involved an alleged trip-and-fall within the fourth floor tenant space of California Cryobank, the plaintiff’s employer. Our clients are the owners of the commercial property located at 369 Lexington Avenue. Plaintiff brought claims asserting that the premises defect – a temporary aluminum floor tile – was related to a construction project ongoing in the space. Plaintiff further claimed that by virtue of monitoring the construction project and maintaining an office in the building, 369 Lex transformed into “in-possession” landlords. The Court rejected plaintiff’s claims in their entirety. The Court found that the tile was solely installed by the tenant/employer, and 369 Lex’s periodic presence in the space was insufficient to qualify them as in-possession landlords. These facts coupled with the terms of the lease led the Court to conclude that 369 Lex was an out-of-possession landlord with no duty to repair or maintain the premises. Accordingly, the Court found that 369 Lex did not owe a duty to plaintiff for the defective aluminum tile and dismissed all claims against them.

Diane Moran v. 369 Lexington Borrower II LCC et al., Index No. 160376/2015 (Sup. Ct. N.Y. Co. Mar. 12, 2021)

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This post was written by Sander Rothchild