New York Team Obtains Voluntary Dismissal of Plaintiff’s Slip-and-Fall Case After Filing Motion for Summary Judgment

(September 2023) - New York Partner Sheryl S. Fyffe and Associate Dean Pillarella recently secured the voluntary dismissal of a slip-and-fall lawsuit against both a property owner and its tenant. In Flores v. RRCB Realty Associates, et al., the plaintiff alleged to have slipped and fallen on ice on the defendant’s property. Lewis Brisbois represented the property owner and tenant, a related company tasked with maintenance of the property, in New York Supreme Court, Suffolk County. After years of discovery and motion practice, Lewis Brisbois filed a motion for summary judgment on behalf of both defendants, arguing the landowner was entitled to dismissal as an out-of-possession landlord and that the tenant was entitled to avail itself of the landowner’s identical defenses pursuant to the law of the case and judicial estoppel doctrines. In response to the motion, the plaintiff declined to submit opposition and stipulated to dismiss the action in its entirety — with prejudice.

Under New York law, “an out-of-possession landlord is not liable for injuries that occur on leased premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct.” Straub v. JM Prop. of Sayville, LLC, 215 A.D.3d 991, 992 (2d Dep’t 2023). Thus, a landlord can demonstrate its entitlement to summary judgment by demonstrating that it was out-of-possession at the time of accident and did not retain control over the premises or otherwise breach a duty imposed by statute, contract, or assumption. A tenant, however, must generally demonstrate that it “did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.” Pagan v. New York City House. Auth., 172 A.D.3d 888, 889 (2d Dep’t 2019). Nonetheless, Lewis Brisbois argued that, under the facts of the case, the landlord’s dismissal from the action necessitated the tenant’s dismissal on identical grounds as a matter of the law of the case and judicial estoppel.

The plaintiff initially commenced the action against the landlord exclusively. After the statute of limitations had expired, plaintiff sought leave to amend her complaint to add the tenant as an additional defendant. To do so, the plaintiff was required to satisfy the “relation-back” doctrine, which requires, among other things, that the party sought to be added must be “united in interest” with the initial party to the action. Parties are not united in interest “if there is the mere possibility that the new party could have a different defense than the original party.” LeBlanc v. Skinner, 103 A.D.3d 202, 210 (2d Dep’t 2012). In support of her motion to amend, the plaintiff argued at length that—despite their respective statuses as landlord and tenant—the tenant was “certainly” united in interest with the landlord. The trial court agreed, finding each “stand[s] and fall[s] together with respect to the plaintiff’s claims.”

Given as much, Dean argued that it was the law of the case that the tenant was entitled to the identical defenses as the landlord, notwithstanding their respective statuses. He further argued that the judicial estoppel doctrine, which prevents parties from taking inconsistent positions in litigation, prevented the plaintiff from changing course solely in an attempt to defeat summary judgment. Thus, the landlord’s dismissal required the tenant’s dismissal. In the alternative, Dean argued that any finding by the court that the tenant was not entitled to avail itself of the landlord’s identical defenses would, in effect, amount to an overruling of its prior order—in which case the claims against the tenant would properly be dismissed as untimely.

In response, rather than submit opposition, the plaintiff discontinued the action in its entirety with prejudice.