The First Department’s recent decision in Rios v 1146 Ogden LLC, 2016 NY Slip Op 01420 (App. Div. 1st Dept. Feb. 25, 2016) illustrates one way in which a plaintiff injured on someone’s property can overcome summary judgment.
There, the plaintiff alleged that she was injured “when she was caused to fall in the bathroom of her apartment due to tiles falling off the wall.”
The appellate court affirmed the Supreme Court (Bronx County)’s denial of defendants’ motion for summary judgment:
Triable issues of fact also exist regarding whether defendants had notice of the allegedly dangerous condition. Defendants’ general manager acknowledged that defendants employed a building superintendent who lived in the basement of the premises, and plaintiff testified that she went to the basement on a number of occasions and complained to the superintendent about the condition of the tiles. Furthermore, defendants’ general manager acknowledged that he was unaware whether defendants received any complaints regarding the dangerous condition prior to plaintiff’s accident.
Also, while the court found that “[d]efendants’ contention that they are out-of-possession landlords with no duty to repair the allegedly dangerous condition is unpreserved since it is raised for the first time on appeal,” it noted that
defendants failed to make a prima facie showing that they were out-of-possession landlords who ceded possession and control to codefendant CYA Management LLC, where they leased individual apartments to CYA pursuant to individual leases, the lease to the subject unit limited the repair obligations that were CYA’s responsibility and prohibited it from making any alterations, and defendants employed a live-in superintendent in the building.