Premises Liability in New York

What Is Premises Liability?

Background

As a general rule, premises liability, whether framed in negligence or nuisance, is predicated on the theory that one who either owns, occupies or controls property should bear the responsibility for its condition. (Merrick v. Murphy, 83 Misc2d 39, 40 [Sup. Ct. 1975].)

Under a negligence theory, a defendant property owner has a duty to maintain its premises in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” (Dudnik v. 1055 Hylan Offices, LLC, 164 AD3d 870, 871 [2d Dept 2018]; Basso v. Miller, 40 N.Y.2d 233, 241, 386 NYS2d 564, 352 NE2d 868 [1976].)

This duty may also include the obligation to warn others of dangerous conditions on the premises. (Rivero v. Spillane Enterprises Corp., 95 AD3d 984, 943 NYS2d 235 [2d Dept 2012]; Cupo v. Karfunkel, 1 AD3d 48, 51, 767 NYS2d 40 [2d Dept 2003].)

However, where a hazardous condition is located beyond the property line of the defendant property owner, the defendant property owner is charged with no duty to remedy it. (Christopher v. Traditi, 178 AD2d 807, 807, 577 NYS2d 705, 705, [3d Dept 1991].)

Further, defendant property owners have “a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control.” (Dynas v. Nagowski, 307 AD2d 144, 146, 762 NYS2d 745, 747 [2003].) But, “ordinarily, defendant property owners who are not present at the time of the harmful conduct by others and have neither notice of nor control over such conduct are under no duty to protect others from its consequences.” (Id.)

How to Structure the Pleading

To establish a prima facie case in the initial pleading, a party must establish: a dangerous condition existed on the land; the owner created or had notice of the condition; the owner failed to take reasonable measures to protect persons on the land from the condition. (See Freidah v. Hamlet Golf & Country Club, 272 AD2d 572, 573, 708 NYS2d 160, 161 [2000]; Barretta v. Glen Cove Prop., LLC, 148 AD3d 1100, 1101, 50 NYS3d 520, 521 [2017].)

Response

A defendant may file a motion for summary judgment to defeat this claim. To demonstrate entitlement to summary judgment, an owner of real property must establish that it maintained the premises in a reasonably safe condition, and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it. (Reed v. 64 JWB, LLC, 171 AD3d 1228, 1228-29 [2d Dept 2019]; 1229 Rendon v. Broadway Plaza Assoc. Ltd Partnership, 109 AD3d 975, 976, 971 NYS.2d 575 [2d Dept 2013]; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061, 1061, 908 NYS2d 124 [2d Dept 2010].)

Defendant’s could also plead an “open and obvious” defense. “While landowners have a duty to prevent the occurrence of foreseeable injuries on their premises, they are not obligated to warn against a condition on the land that could be readily observed by the use of one's senses.” (See Moriello v. Stormville Airport Antique Show & Flea Mkt., Inc., 271 AD2d 664, 665, 706 NYS2d 463 [2000].)

Other affirmative defenses include contributory negligence and assumption of risk. (C.P.L.R. 1411 (“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”).)

The Court’s Decision

A typical issue before the court in these cases is whether the defendant had actual or constructive notice of the alleged defect. A defendant property owner has constructive notice of a defect when it is visible and apparent and has existed for a sufficient length of time before the accident that it could have been discovered and corrected. (Reed v. 64 JWB, 171 AD3d at 1229; Williams v. SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035, 895 NYS2d 528 [2d Dept 2010].) When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed. (Schnell v. Fitzgerald, 95 AD3d 1295, 945 NYS2d 390 [2d Dept 2012]; Lal v. Ching Po Ng, 33 AD3d 668, 823 NYS2d 429 [2d Dept 2006].)

Note, whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is, generally, a question of fact for the jury. (Julianne Oldham Powers v. Longwood Cent. Sch. Dist., 123 AD3d 681, 682, 997 NYS2d 687 [2d Dept 2014]; Pellegrino v. Trapasso, 114 AD3d 917, 918, 980 NYS2d 813 [2d Dept 2014]; Gutman v. Todt Hill Plaza, LLC, 81 A.D.3d 892, 892-893, 917 NYS2d 886 [2d Dept 2011]; Villano, 76 AD3d at 1062.)

Timeline

The statute of limitations to file a premises liability action is three years from the date of injury. (C.P.L.R. 214(5).)

Documents for Premises Liability in New York

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Carmen D Rivera-Colon v. The City Of New York, New York City Department Of Transportation, New York City Department Of Housing Preservation, Intervale Realty Corp, 829 Southern Boulevard Housing Development Fund Corporation document preview - page 1 of 8

ORDER - CASE SCHEDULING - ORDER - CITY CASES DATED 9/19/2023

FILED: BRONX COUNTY CLERK 09/21/2023 04:18 PM INDEX NO. 804014/2023E NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/21/2023 SUPREME COURT OF THE STATE OF NEW YORK 851 Grand Concourse Bronx, New York 10451 …

Case Name Carmen D Rivera-Colon v. The City Of New York, New York City Department Of…