premises liability claim in New York

2013To prevail on a premises liability claim, a plaintiff does not have “to exclude every other possible” explanation as to how the assailants entered the building, but only present “evidence [that] renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance” (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551 [1998]).

2013To prevail on a premises liability claim, a plaintiff does not have “to exclude every other possible” explanation as to how the assailants entered the building, but only present “evidence [that] renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance” (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551 [1998]).

2017With respect to the premises liability claim, “[i]n order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” (Spain v Holl, 115 AD3d 1368, 1369 [2014]; see generally Chapman v Silber, 97 NY2d 9, 19-20 [2001]).

2017With respect to the premises liability claim, “[i]n order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” (Spain v Holl, 115 AD3d 1368, 1369 [2014]; see generally Chapman v Silber, 97 NY2d 9, 19-20 [2001]).

2017With respect to the premises liability claim, “[i]n order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” (Spain v Holl, 115 AD3d 1368, 1369 [2014]; see generally Chapman v Silber, 97 NY2d 9, 19-20 [2001]).

2017With respect to the premises liability claim, “[i]n order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” (Spain v Holl, 115 AD3d 1368, 1369 [2014]; see generally Chapman v Silber, 97 NY2d 9, 19-20 [2001]).

2013Plaintiffs may not rely on the complaint (served 13 months after the accident), the bill of particulars (served almost two years after the accident), or the General Municipal Law § 50-h hearing testimony (given almost one year after the accident) to alert respondents to their theory of a failure to discover and remedy a wet floor (see Scott v City of New York, 40 AD3d 408, 410 [1st Dept 2007]).

2013Plaintiffs may not rely on the complaint (served 13 months after the accident), the bill of particulars (served almost two years after the accident), or the General Municipal Law § 50-h hearing testimony (given almost one year after the accident) to alert respondents to their theory of a failure to discover and remedy a wet floor (see Scott v City of New York, 40 AD3d 408, 410 [1st Dept 2007]).

2013It alleged merely that respondents were “negligent in the premises.” This allegation failed to provide respondents with enough information to enable them to investigate the premises liability claim (see O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]).

2013It alleged merely that respondents were “negligent in the premises.” This allegation failed to provide respondents with enough information to enable them to investigate the premises liability claim (see O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]).

2026Collateral estoppel "bars the relitigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment" ( Paramount Pictures Corp. v Allianz Risk Transfer AG , 31 NY3d 64, 72 [2018] [internal quotation marks omitted]).

2025The law is well-settled that "[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" ( Sanchez v State of New York , 99 NY2d 247, 252 [2002]).

2024Footnote 10: See also, Nouel v. 325 Wadsworth Realty LLC ( 112 AD3d 493 [1st Dept. 2013], leave to appeal denied 23 NY3d 904 [June 5, 2014]), discussed infra , where the court held, as to the theory of sexual assault based on premises liability by landlord's employee, that given defendants' lack of notice, plaintiffs' premises liability negligence claim was properly dismissed, and further, that "although couched as a premises liability claim, [it] is merely duplicative of the negligent hiring, retention, and supervision claims. ( Nouel v. 325 Wadsworth Realty LLC, supra , 112 AD3d at 494.)

2024Footnote 10: See also, Nouel v. 325 Wadsworth Realty LLC ( 112 AD3d 493 [1st Dept. 2013], leave to appeal denied 23 NY3d 904 [June 5, 2014]), discussed infra , where the court held, as to the theory of sexual assault based on premises liability by landlord's employee, that given defendants' lack of notice, plaintiffs' premises liability negligence claim was properly dismissed, and further, that "although couched as a premises liability claim, [it] is merely duplicative of the negligent hiring, retention, and supervision claims. ( Nouel v. 325 Wadsworth Realty LLC, supra , 112 AD3d at 494.)

2020First, the premises liability claim hinges upon a determination of the foreseeability of harm, which includes "the foreseeable criminal acts of third parties on the premises" ( Haire v Bonelli , 107 AD3d 1204, 1204-1205 [2013], lv denied 22 NY3d 852 [2013]; see Mason v U.E.S.S.

2020Leasing Corp. , 96 NY2d 875, 878 [2001]).

2015In support of his motion, defendant tendered the affidavit of a professional engineer, who opined that “the . . . roof area located outside the third[-]floor bedroom of. . . 78-80 Groton Avenue as constructed and maintained conformed with all applicable building codes on November 2, 2007,” 3 including the code provisions relied upon by plaintiff (see Property Maintenance Code of New York State §§ 304.1, 304.2, 304.10, 304.12), and, *1191 more to the point, that the roof “was reasonably safe for its intended purpose and was not a dangerous condition.” The engineer further averred that, because

2015In support of his motion, defendant tendered the affidavit of a professional engineer, who opined that “the . . . roof area located outside the third[-]floor bedroom of. . . 78-80 Groton Avenue as constructed and maintained conformed with all applicable building codes on November 2, 2007,” 3 including the code provisions relied upon by plaintiff (see Property Maintenance Code of New York State §§ 304.1, 304.2, 304.10, 304.12), and, *1191 more to the point, that the roof “was reasonably safe for its intended purpose and was not a dangerous condition.” The engineer further averred that, because

2015For purposes of a premises liability claim, constructive notice “requires a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendant [ ] to discover it and take corrective action” (Tate v Golub Props., Inc., 103 AD3d 1080 , 1081 [2013] [internal quotation marks and citation omitted]; see Ravida v Stuyvesant Plaza, Inc., 101 AD3d 1421, 1422 [2012]).

2003Super Hair established its entitlement to judgment as a matter of law on that claim by proving that the driveway/ parking lot was not part of the leased premises and that the maintenance of that common area was under the control of Simmonetti, not Super Hair, and plaintiff failed to raise a triable issue of fact on the claim of premises liability (see Geloso v Castle Enters., 266 AD2d 849, 850 [1999]; Stevens v Northern Lights Assoc., 229 AD2d 1001, 1002 [1996]; Dunn v Reardon, 184 AD2d 1064 [1992]).

2003Super Hair established its entitlement to judgment as a matter of law on that claim by proving that the driveway/ parking lot was not part of the leased premises and that the maintenance of that common area was under the control of Simmonetti, not Super Hair, and plaintiff failed to raise a triable issue of fact on the claim of premises liability (see Geloso v Castle Enters., 266 AD2d 849, 850 [1999]; Stevens v Northern Lights Assoc., 229 AD2d 1001, 1002 [1996]; Dunn v Reardon, 184 AD2d 1064 [1992]).