In Saffaf v Lincoln Ctr. for the Performing Arts, 2016 NY Slip Op 30312(U) (Sup Ct NY Cty Feb. 23, 2016), plaintiff alleged that he was injured while inside the Metropolitan Opera House (leased from owner Lincoln Center for the Performing Arts) when he slipped and fell when descending stairs located on the orchestral level.
Lincoln Center moved to dismiss under CPLR 3211(a)(1) on the basis of a lease, which it claimed “obligates the Met to inspect, maintain, and repair the premises including the orchestra level”. The court denied the motion.
The law, as summarized by the court:
Generally, an out-of-possession owner may not be held liable for injuries caused by a defective condition absent a contractual or statutory duty to maintain and repair the premises. If the owner contractually reserves the right to reenter the premises, it may be charged with constructive notice of the dangerous condition existing in violation of an applicable safety statute. Even in the presence of a contract, however, the court shall look not only to the terms of the agreement but to the parties’ course of conduct … to determine whether the [owner] in fact surrendered control over the property.
The court denied the motion as premature, ruling that “the lease does not dispose of plaintiffs’ claim against [Lincoln Center] as a matter of law”:
Plaintiffs demonstrate that additional discovery may reveal a course of conduct between the Met and Lincoln Center to establish the latter’s control over the subject area of the premises. … [W]hile the documentary evidence on which Lincoln Center relies establishes undisputedly that the accident occurred on the orchestra level, the specific site is not identified, and it is impossible to discern the orchestra level on the annexed diagrams.