Joseph v. Emmis Communications d/b/a Hot 97.1 FM, et al., Index No. 20843/2010 (Sup. Ct. Bronx Ct. April 19, 2013)

Plaintiff’s reference to deposition testimony concerning building violations was not sufficient to raise a triable issue of fact, held a Bronx Court.

The defendant moved for summary judgment upon its defense that, as an out-of-possession landlord, it could not be liable to the tenant’s patron who was assaulted by other patrons. An out-of-possession landlord is generally not liable for negligence unless the landlord is either contractually obligated to maintain the premises or has a contractual right to reenter, inspect, and make needed repairs.

Where there is a right to reenter, the out-of-possession landlord can only be held liable where the condition complained of constitutes a substantial structural or design defect that also violates a statutory or code requirement. Plaintiff opposed the motion with a copy of the lease and testimony of a property manager who had been aware of violations against the subject premises.

Agreeing that the defendant’s lease did not obligate it to repair or maintain the premises, Justice Alexander W. Hunter, Jr. further held that the plaintiff’s injuries were not causally connected to any violation or structural or design defect, of which there was no proper evidence in any event. Plaintiff could not argue that such evidence was unavailable when, to the contrary, he had filed a Note of Issue and Certificate of Readiness indicating that discovery was complete.

Dram Shop claims were also dismissed because the landlord had no control over the tenant’s business and did not furnish alcohol to anyone.