On July 12, 2023, Riad Hamai won an appeal that affirmed the lower court’s decision and granted summary judgment dismissing the plaintiff’s case in Son v. Zafiara Realty, Inc., et al., 2023 NY Slip Op 03772 (2nd Dept. 2023). In Son, the plaintiff claimed that she was injured when the metal security gate in front of the store known as Total Beauty Supply came down unexpectedly knocking her to the ground and pinning her to the sidewalk below. Our client, Zafiara Realty, Inc., was the owner of 160 East 116th Street and leased the ground floor commercial space to Total Beauty Supply Corp. As a result of the accident, Ms. Son sustained a burst fracture at the L1 level of the lumbar spine; an injury to the lower back resulting in an emergency laminectomy and decompression surgery at the T11-L3 levels with the insertion of fusion rods and screws. The plaintiff’s injuries have resulted in paraplegia in the lower extremities.
On appeal, Mr. Hamai argued that Zafiara Realty is entitled to status as an out of possession landowner as it did not retain control or possession of the leased space nor was it contractually obligated to maintain or repair the security gate in question. Mr. Hamai also argued that the plaintiff’s accident did not involve any structural defect to trigger liability as against Zafiara Realty. Moreover, Mr. Hamai argued that Zafiara Realty did not violate any specific statutory violation relative to a structural defect that proximately caused the plaintiff’s accident. In a unanimous decision, the Appellate Division affirmed the lower court’s decision which dismissed the plaintiff’s claims against our client. The Court found that Zafiara was an out-of-possession landlord which was not bound by contract or course of conduct to repair the allegedly dangerous condition of the gate. Further the Court noted that the lease between Zafiara and 315 Management that was in effect at the time of the accident, established that 315 Management enjoyed complete and exclusive possession of the demised premises at the time of the plaintiff’s injuries and that Zafiara was not responsible for maintenance of the gate.