Is an Out-of-Possession Landlord’s Duty Under Administrative Code §7-210 Non-Delegable When the Condition Is Snow and Ice?

On Sept. 13, 2018, following the Appellate Division, First Department’s unanimous decision dismissing the plaintiff’s complaint, the Court of Appeals granted leave to appeal to the plaintiff in He v. Troon Management. Plaintiff Xiang Fu He was injured when he slipped and fell on ice on the public sidewalk abutting his employer’s leased premises. Unable to sue his employer, He brought suit against the out-of-possession landlord Troon Management. Citing an owner’s non-delegable duty under Administrative Code §7-210, the lower court denied summary judgment. The First Department reversed, however, on the grounds that the defendants were out-of-possession landlords and the plaintiff slipped on a transient condition that does not constitute a structural defect. At issue is whether an out-of-possession landlord has a non-delegable duty under Administrative Code §7-210 where the condition complained of involves snow and ice.

Historically, an out-of-possession landlord who relinquished control of the premises and was not contractually obligated to repair unsafe conditions, would not be liable to employees of a lessee or other third-parties for personal injuries caused by an unsafe condition existing on the premises. Rivera v. Nelson Realty, 7 N.Y.3d 530, 534 (2006). If the out-of-possession landlord retained a right to re-enter to inspect or repair, however, its reservation of rights could give rise to liability if the injured party was injured in an area over which the landlord retained a right to repair and the alleged defect constituted a design or structural defect that is contrary to a specific statutory safety provision. Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 569 (1987). Traditionally, transient conditions, such as snow and ice alone, could not give rise to liability against an out-of-possession landlord with a mere right of re-entry. Thus, violation of a specific statute, which constitutes a structural or design defect, is the sine qua non of a claim against an out-of-possession landlord. Devlin v. Blaggards III Rest., 80 A.D.3d 497 (1st Dep’t 2011), lv. den’d 16 N.Y.3d 713 (2011).