This slip-and-fall case raises a novel theory of whether a tenant-lessee may be held responsible for an allegedly icy or otherwise dangerous condition based on an allegedly "outward manifestation of control."

The plaintiff Kim Thurman ("Thurman"), on or about February 15, 2006, fell on either snow, ice, or wet cement, by alternative theories, in front of defendant Municipal Credit Union's ("MCU") premises in Elmont, a hamlet of the Town of Hempstead, in Nassau County, New York. MCU leased the property from the landlord Plainview Avenue Associates ("Plainview"). Plaintiff Thurman's action against Plainview was dismissed by order of Justice Lee A. Mayersohn of this Court, dated February 9, 2010, as being untimely under the applicable statute of limitations. By this motion, the tenant-lessee MCU now moves for summary judgment dismissing Thurman's amended complaint.

The terms of the lease between Plainview and MCU are irrefutable. The contract, in a provision governing "Sidewalk," states: "It is specifically understood that the sidewalk that exists adjacent or near the Premises shall be considered part of a common area of the Shopping Center, and shall be maintained (including snow and ice removal) by the [*2]Landlord." (Lease, pp. 40-41).

Not only does MCU have the contract to shield it from liability, but the case law of New York also protects it. This Court's independent legal research has found the dispositive case of Gallo v Health Port, Inc., 62 AD2d 943 [2nd Dept. 2009]. In Gallo, the dripping snow or ice from a roof of a landlord's strip mall was insufficient to charge the tenant with notice of an icy patch on which the customer slipped and fell, thereby precluding the customer's action against the tenant. The Appellate Division, Second Judicial Department, significantly modified the lower court's decision that, in relevant part, had denied the tenant's cross motion for summary judgment to dismiss. The Second Department, in Gallo, observed that the store tenant's "general awareness of a dangerous condition . . . was insufficient to charge it with constructive notice of the condition." Id. at 945. Accord, Gjoni v 108 Rego Developers Corp., 48 AD3d 514 [2nd Dept. 2008]; 86 NY Jur. 2d "Premises Liability" § 355. In the present action, Thurman has failed to show actual or constructive notice of a dangerous condition, and thus plaintiff's complaint must be dismissed.

Plaintiff Thurman next tries an imaginative argument, contending that MCU showed an "outward manifestation of control" of the premises sufficient to warrant denial of the summary judgment motion. Thurman contends that "[a]ny customer approaching the said premises is met with a large sign displaying MUNICIPAL CREDIT UNION." This sign, plaintiff Thurman contends, is enough to demonstrate that "customers justifiably relied upon the information provided by the Defendant which indicated [its] control of [the] premises in front of its own branch."

This Court is not convinced. First, the Court has not been referred to any New York case involving premises liability accepting a theory of "outward manifestation of control" to impose liability on a tenant-lessee. Second, the reply affirmation of Christopher B. Hitchcock, Esq., on behalf of MCU, aptly states: "to state the argument is to recognize its absurdity. If plaintiff's argument is to be believed, any tenant that puts up a sign to advertise the location of its business would automatically be liable for any injuries sustained by a person who could see the sign, regardless of contrary provisions in a lease." This Court declines to join or indulge plaintiff's retreat to flights of fancy, where both the lease provisions and the applicable law unmistakably show that defendant tenant-lessee cannot be held liable. The plaintiff's amended complaint is thus dismissed.

The foregoing constitutes the decision, order, and opinion of the Court. Any party may file notice of entry of a copy of a decision and order that attaches a copy of it bearing the dated stamp of entry by the County Clerk. [*3]

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

August 9, 2011