Opinion
03 CV 2592 (RJD).
November 18, 2004
MEMORANDUM ORDER
Plaintiff seeks recovery for injuries she alleged occurred on April 15, 2002 when she fell on a common stairway between the first and second floors in a building owned by defendant. Defendant moves for summary judgment arguing that as an out-of-possession owner, it cannot be held liable. For the reasons discussed below, the motion is granted.
BACKGROUND
During the relevant period, plaintiff lived in the third floor apartment at 90 Cornelia Street in Brooklyn, New York. There is a single front door to the building to which all tenants have a key. Inside the building, each of the three apartments has a separate, locked entrance. Ex. B at 73.
Before August 23, 2001, the Cornelia Street property was owned and managed by Ruth Spears. Matrix acquired title at a foreclosure sale held on August 23, 2001. Matrix did not receive keys to the building at the time of sale. Defendant's 56.1 Statement; Ron Trumnell Dep. at 20. On August 27, 2001, Matrix retained Five Brothers Mortgage Company Services and Securing, Inc. to inspect the property. Five Brothers reported that it attempted to enter the property on seven occasions spanning a six month period but was denied access to the building. Brill Aff. Ex H; Ex. J. The records do not indicate whether the door to the building was in fact locked, only that the building was occupied and either no tenants were present to give the company access or that access was denied. A process server employed by Matrix faced similar difficulties in gaining access to the building. Brill Aff. Ex. K.
Matrix initiated summary holdover proceedings and served notices to quit on the tenants in February 2002. Brill Aff. Ex. K. Matrix and plaintiff reached a settlement on April 19, 2002. Matrix notes that this stipulation was executed only four days after the alleged accident, but that plaintiff did not mention the accident at that time. Defendant indicates that the building was vacated by the remaining tenants in October 2002. Trumnell Dep. at 23.
Plaintiff testifies that the stairs between the first and second floor had been in disrepair for about six months prior to her accident in April 2002. She claims that she complained to Spears, the previous owner, but acknowledges that she never reported the condition to Matrix.
DISCUSSION
Liability for dangerous conditions on property arises when the defendant had actual or constructive notice of the condition and owed a duty of care to the plaintiff. Wynn v. TRIP Redevelopment Associates, 745 N.Y.S.2d 97 (App.Div. 2002). In addition, it is generally the person with possession and control of the property who owes a duty of care. Butler v. Rafferty, 100 N.Y.2d 265, 270 (2003). Mere ownership, absent some degree of control, is typically not enough to trigger liability. "It is well settled that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises. Mere reservation of a right to enter the premises for the purpose of inspection and repair is insufficient to charge the owner or lessor with liability for a subsequently arising dangerous condition unless the defect violates a specific statutory provision and there is a significant structural or design defect." Eckers v. Suede, 743 N.Y.S.2d 129, 130 (App.Div. 2002) (internal citations omitted). An owner has a duty of care to maintain "common areas" of a premises, defined as "those areas which are reserved and intended for common use of the tenants and owner of the building and subject to the landlord's control." Wynn, 745 N.Y.S.2d at 100. Again, the degree of control by an owner determines whether an area is considered "common."
Defendant moves for summary judgment arguing that as an out-of-possession owner, it cannot be held liable. Matrix maintains that the undisputed evidence shows that it did not take possession of, or exercise control over, the building before plaintiff's accident. Defendant points to the records of Five Brothers which show that attempts to enter the building to inspect were unsuccessful. Furthermore, Matrix did not enter contractual relationships with the holdover tenants nor did it collect rent from them.
Matrix relies heavily on a recent Appellate Division decision.See Richardson v. Yasuda Bank and Trust Company, 772 N.Y.S.2d 595 (App.Div. 2004), appeal denied, 2004 N.Y. LEXIS 2212 (Ct. App. Sept. 7, 2004). In Richardson, plaintiffs were injured as a result of a gas explosion in their residence. They sued the property owner and its servicing agent. As here, Yasuda had purchased the subject property at a foreclosure sale. Yasuda and its servicing agent were not given access to the property to inspect. Eviction proceedings were pending at the time of the accident. The court concluded that defendants had established that they were out-of-possession owners and thus immune from liability. Plaintiffs did not offer evidence that defendants either had access to the property or a contractual relationship with plaintiffs. In granting summary judgment, the court stressed the absence of evidence showing that defendants were either in possession or control of the property.
Plaintiff argues that defendant should have undertaken greater efforts to inspect the common areas of the building and, absent such effort, should be deemed to have had constructive notice of the condition of the stairs. Plaintiff emphasizes that defendant waited for six months after acquiring title to serve the tenants with notices to quit. Plaintiff notes that Trumnell testified that their general practice is not to enter property bought at foreclosure, though if they had cause to enter they could legally do so. Trumnell Dep. at 12-13. Plaintiff also claims that the records of the process server indicate that it served the apartment on the third floor. This, claims plaintiff, shows that defendant could have obtained possession and control of the building, had defendant chosen to do so. Even assuming that the process server gained access on a particular date, as plaintiff argues, defendant is still entitled to summary judgment. Plaintiff offers no other evidence to suggest that defendant in fact entered the building, much less that it actually exercised control over it.
Plaintiff also claims that defendant should have undertaken other forms of self-help to gain access to the building. However, defendant cannot be faulted for failing to undertake actions that would likely be illegal under New York law. Opposition Aff. ¶ 5.
Plaintiff's arguments are insufficient to defeat summary judgment. The law in New York is clear. Assumption of mere ownership, absent possession or control, is not sufficient to trigger liability. Plaintiff does not assert that she enjoyed a contractual relationship with defendant that obligated defendant to maintain the common areas of the building. Plaintiff points to no statutory obligation on defendant to maintain the common areas of the building. Nothing suggests that defendant assumed any such obligation, particularly since it did not inspect the interior of the premises before the accident. See Cherubini v. Testa, 515 N.Y.S.2d 29, 31 (App. Div. 1987) ("When a landlord retains control over a portion of the premises, he or she is liable for injuries resulting from the faulty condition of those premises. Control of the premises may be established by proof of the landlord's promise, either written or otherwise, to keep certain premises in repair, or by a course of conduct demonstrating that the landlord has assumed responsibility to maintain a particular portion of the premises.") (internal citations omitted); Relihan v. Felson, 48 N.Y.S.2d 736, 737 (App.Div. 1944) (sufficient evidence that landlord retained "control and possession" of common back stairway where landlord retained key to back entrance and used it on at least a weekly basis to enter building without prior announcement or permission of tenant). Furthermore, a general right to re-enter and inspect is insufficient, by itself, to ground liability. Eckers, 743 N.Y.S.2d at 131. To be sure, the stairs at issue in this case are in a common area of the building, not within any individual apartment. As such, once an owner assumes possession of the building itself, he would owe a greater duty to maintain such common areas. See Harris v. Boardman, 73 N.Y.S. 963 (App.Div. 1902). However, in this case, the record is clear that defendant had not yet assumed possession or control of even the common areas of the property.
Based on the undisputed evidence, it is clear that defendant did not in fact assume control over or possession of the property. Therefore, it owed no duty to plaintiff and was not on constructive notice of conditions in the property. Plaintiff's contention that defendant should have made more effort to take possession of the property does not alter defendant's status as an out-of-possession owner at the time of the accident.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close the case.SO ORDERED.