On August 3, 2022, the Second Department issued a decision in Cali Dev. Corp. v. Church Side Realty, LLC, 2022 NY Slip Op. 04786, holding that an out-of-possession commercial landlord was not liable for damage to a building, explaining:
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 to perform the relevant maintenance or repairs. Here, where the counterclaims sound in common-law negligence and the pleadings do not allege the violation of a statutory duty, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord that did not assume a duty to maintain the water ejection pump by contract or course of conduct.
The papers submitted in opposition failed to raise a triable issue of fact. Church Side’s contention that the plaintiff was not an out-of-possession landlord because it employed a superintendent for the building and retained a right of reentry for inspection and repairs is improperly raised for the first time on appeal. Church Side’s contention that the cause of the leak was actually a broken sewer pipe located under a floor slab, which Church Side argued was the plaintiff’s responsibility under the lease, improperly asserted a new theory of liability not set forth in the counterclaims or bill of particulars. Moreover, the submissions in support of this new theory were speculative and insufficient to raise a triable issue of fact.
(Internal quotations and citations omitted).