Practice point: An out-of-possession landlord's duty to repair a dangerous condition
on leased premises is imposed by statute or regulation, by contract, or
by a course of conduct. Here, the defendant established its prima facie entitlement to judgment
as a matter of law by demonstrating that it was an out-of-possession
landlord, that it was not contractually obligated to maintain the
subject parking lot, that it did not endeavor to maintain the subject
parking lot, and that it did not owe the plaintiff a duty by virtue of
any applicable statute or regulation. The expert's opinion, as set forth in the affidavit, was speculative, conclusory, and insufficient to raise a triable issue of fact.
Student note: The fact that the plaintiff's expert was not disclosed until
seven months after the filing of the note of issue, and his affidavit
was submitted only in response to the defendant's motion for summary
judgment, did not, in and of itself, render the disclosure untimely.
Case: Castillo v. Wil-Cor Realty Co., Inc., NY Slip Op 05871 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Writings as evidence.
