Introduction

This Appellate Division, Second Department decision arises from a premises liability action brought by a patron, Severino Mejia, who fell inside a neighborhood bodega. The tenant-operator, La Familia Grocery, Inc. (“La Familia”), had placed flattened cardboard on the store’s floor as ad hoc floor mats on a snowy day. Mejia allegedly tripped on a raised piece of that cardboard; as he attempted to steady himself, the cardboard slipped, and he fell. The building owner, 2959 Fulton Street Realty, Inc. (“Fulton Street”), leased the premises to La Familia and asserted it was an out-of-possession landlord with no liability for the transient interior condition.

The Supreme Court (Kings County) denied the defendants’ motion for summary judgment and granted the plaintiff’s cross-motion on liability against both defendants. On appeal, the Second Department modified: it dismissed the complaint against the landlord Fulton Street, but affirmed liability against the tenant La Familia in the plaintiff’s favor.

The case clarifies two important strands of New York premises liability doctrine:

• For storekeepers, improvised cardboard “mats” in wet/snow conditions are not, as a matter of law, an open and obvious condition that is not inherently dangerous; indeed, the facts here supported summary judgment for the plaintiff on liability against the tenant.
• For out-of-possession landlords, absent a specific statutory duty tied to a significant structural or design defect—or a contractual assumption of maintenance obligations—liability will not attach for a tenant-created, transient hazard. A general statutory duty (e.g., Administrative Code § 28-301.1) is insufficient.

Summary of the Judgment

• As to the landlord (Fulton Street): Reversed. The court held Fulton Street was an out-of-possession landlord with no duty to repair or maintain the premises for the temporary condition at issue. The plaintiff’s attempt to rely on Administrative Code § 28-301.1 failed procedurally (raised for the first time in reply) and substantively (the provision imposes only a general duty, not the specific duty needed to bind an out-of-possession landlord). Summary judgment dismissing the complaint against Fulton Street should have been granted, and the plaintiff’s cross-motion for liability against Fulton Street should have been denied.
• As to the tenant (La Familia): Affirmed. The defendants failed to establish that the cardboard condition was both open and obvious and not inherently dangerous as a matter of law, or that it was physically insignificant under the circumstances. The plaintiff, however, made a prima facie showing that La Familia breached its duty to maintain reasonably safe premises and that its negligence proximately caused the injuries. The tenant failed to raise a triable issue in opposition. Summary judgment on liability in favor of the plaintiff against La Familia was properly granted.
• Disposition: Order modified to dismiss against the landlord and deny plaintiff’s liability cross-motion as to the landlord; otherwise affirmed without costs or disbursements.

Analysis

A. Precedents Cited and Their Influence

• Basso v Miller, 40 NY2d 233 (1976): The foundational New York rule that possessors of land owe a duty of reasonable care under the circumstances. The court relied on Basso to frame the tenant’s duty to maintain the bodega in a reasonably safe condition.
• Cupo v Karfunkel, 1 AD3d 48 (2d Dep’t 2003): Frequently cited for two related propositions: (i) landowners’ general duty to maintain safe premises, and (ii) the “open and obvious” doctrine does not automatically bar liability; defendants seeking summary judgment must show the condition was open and obvious and not inherently dangerous. Here, defendants failed to make that showing regarding cardboard mats.
• Smith v Dutchess Motor Lodge, 213 AD3d 881 (2d Dep’t 2023): Reiterates the duty to keep premises reasonably safe considering likelihood and seriousness of injury and burden of risk avoidance. This supported the general negligence framework applied to La Familia.
• Kavenaght v 498 Seventh, LLC, 231 AD3d 720 (2d Dep’t 2024); Sparozic v Bovis Lend Lease LMB, Inc., 50 AD3d 1121 (2d Dep’t 2008); Hepburn v Getty Petroleum Corp., 258 AD2d 504 (2d Dep’t 1999); Eckers v Suede, 294 AD2d 533 (2d Dep’t 2002): Together, these cases articulate and refine the out-of-possession landlord doctrine: liability generally requires retained control plus a duty assumed by contract, imposed by specific statute, or evidenced by a course of conduct; mere reservation of a right to enter for inspections/repairs can suffice only when tied to a specific statutory violation and a significant structural or design defect. The court used this line to exonerate Fulton Street where the alleged hazard was a tenant-created, transitory condition (cardboard on the floor), not a structural defect.
• Jin Hee Son v Zafiara Realty, Inc., 218 AD3d 554 (2d Dep’t 2023); Yuying Qiu v J & J Grocery & Deli Corp., 115 AD3d 627 (2d Dep’t 2014): These precedents hold that Administrative Code § 28-301.1 imposes only a general duty, insufficient to saddle an out-of-possession landlord with liability. The panel followed them to reject the plaintiff’s reliance on § 28-301.1.
• Baran v Port Auth. of N.Y. & N.J., 196 AD3d 674 (2d Dep’t 2021); McLachlan v R & S, Inc., 52 AD3d 662 (2d Dep’t 2008): To win on an “open and obvious” theory, a defendant must show the condition was open and obvious and not inherently dangerous, as a matter of law. The defendants did not meet this standard for cardboard mats during snowy, wet conditions.
• Brett v AJ 1086 Assoc., LLC, 189 AD3d 1153 (2d Dep’t 2020); Oruc v Zelik, 216 AD3d 804 (2d Dep’t 2023); Pirreca v Smithtown Cent. Sch. Dist., 208 AD3d 526 (2d Dep’t 2022): These decisions emphasize context: whether a hazard is open and obvious or inherently dangerous depends on the totality of specific facts. A condition apparent in the abstract may become a “trap for the unwary” if obscured or distracting circumstances exist. This supported rejecting a categorical “cardboard is obvious and safe” defense.
• Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 (2d Dep’t 2010): Evidence on a motion is viewed in the light most favorable to the non-movant. Applied here to assess defendants’ showing.
• Hoffman v Dean C Ltd Partnership, 229 AD3d 452 (1st Dep’t 2024); Bissett v 30 Merrick Plaza, LLC, 156 AD3d 751 (2d Dep’t 2017): Reinforce that the kinds of floor-level irregularities or contaminants at issue in retail settings can be actionable and are not invariably open and obvious or non-dangerous as a matter of law.
• Abreu v Pursuit Realty Group, LLC, 232 AD3d 751 (2d Dep’t 2024); Nicotra v Giunta’s Meat Farms, Inc., 214 AD3d 665 (2d Dep’t 2023); Elentuck v NYCTA, 188 AD3d 825 (2d Dep’t 2020); Hoppe v Imperial Towers Assoc., 181 AD3d 659 (2d Dep’t 2020): Address “physically insignificant” defects and how surrounding conditions may amplify risks. The defendants did not show that a raised piece of wet cardboard in a snowy entryway was trivial under the circumstances.
• Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985): A movant’s failure to make a prima facie showing mandates denial regardless of the opponent’s papers. This controlled the tenant’s unsuccessful summary judgment effort.
• Barger v Only Props., LLC, 193 AD3d 1027 (2d Dep’t 2021); Fox v Patriot Saloon, 166 AD3d 950 (2d Dep’t 2018): New theories raised for the first time in reply are improper. The plaintiff’s Administrative Code § 28-301.1 argument failed procedurally for this reason as to the landlord.
• Cuminale v 160–55 Crossbay Blvd., LLC, 229 AD3d 682 (2d Dep’t 2024); Pastore v Town of Harrison, 57 AD3d 636 (2d Dep’t 2008): Applied to uphold summary judgment for a plaintiff where the defendant’s breach and causation are established and no triable issue is raised in opposition.

B. The Court’s Legal Reasoning

1) Out-of-Possession Landlord: No Liability Without a Specific Statutory/Structural Hook

The Second Department emphasized the settled rule: an out-of-possession landlord is not liable for on-premises injuries unless it retains control and has an express contractual duty or a specific statutory or regulatory obligation, or unless a course of conduct demonstrates such control. A mere lease provision reserving a right to enter and repair does not, standing alone, establish liability for a non-structural, tenant-created condition. That reservation can support constructive notice only where there is both (i) a significant structural or design defect and (ii) a violation of a specific statute.

Applying that framework, the hazard here—flattened cardboard placed as temporary floor mats by the tenant on a snowy day—was a transient condition wholly within the tenant’s control, not a structural or design defect. The plaintiff also failed to properly and substantively ground landlord liability in a specific statute: raising Administrative Code § 28-301.1 only in reply was improper, and even on the merits that provision imposes only a general duty insufficient to attach liability to an out-of-possession landlord. There was no record evidence that the landlord’s principal ran the bodega’s daily operations. Accordingly, Fulton Street was entitled to summary judgment dismissing the claims against it.

2) Tenant’s Liability: Cardboard “Mats” Not Proven Open and Obvious or Non-Dangerous; Plaintiff’s Liability Cross-Motion Proper

As to La Familia, the court rejected the tenant’s attempt to win on an “open and obvious/not inherently dangerous” theory. For a defendant to prevail on that ground at summary judgment, it must prove both elements as a matter of law. Context matters: wet weather, the use of improvised cardboard as a walking surface, and evidence that cardboard becomes slippery when wet combined to defeat the tenant’s prima facie showing.

Moreover, the tenant did not establish that the condition was “physically insignificant.” A raised piece of wet cardboard on a store floor—especially at or near an entrance during snow—can materially increase the risk of slipping or tripping and is not trivial in the legal sense.

The plaintiff, by contrast, met his burden on his cross-motion: testimony established that the tenant placed and replaced cardboard as makeshift mats when wet; the plaintiff tripped on a raised portion and the cardboard slipped as he tried to steady himself. That evidence established breach of the duty to maintain a reasonably safe condition and proximate causation. Because La Familia created the condition, notice was not at issue; and the tenant failed to raise a triable issue of fact. Summary judgment on liability for the plaintiff against La Familia was therefore appropriate.

C. Impact and Practical Significance

1) For Retailers and Commercial Tenants

• No safe harbor in improvisation: Using flattened cardboard as floor coverings during wet or snowy conditions is fraught with risk and will not be deemed non-dangerous as a matter of law. In appropriate records, it can support plaintiff’s summary judgment on liability.
• Open-and-obvious is not a shield to liability: Even if a cardboard mat is visible, that does not immunize a tenant where the condition is inherently dangerous or the circumstances render it a “trap for the unwary.” The duty to maintain safe premises remains.
• Creation equals notice: Where the tenant’s employees place the hazard, plaintiffs need not prove actual or constructive notice of the condition’s existence; creation suffices.
• Operational takeaways: Use commercial-grade, slip-resistant entrance mats with beveled edges; implement inspection and replacement protocols; avoid cardboard or other makeshift materials; document maintenance in inclement weather.

2) For Landlords

• Reaffirmed limits on out-of-possession liability: Absent a contractual obligation, a specific statutory duty, or a landlord-created structural/design defect, owners will not be liable for tenant-created, transient interior conditions.
• Lease drafting and practice: Clearly allocate maintenance responsibilities to the tenant for interior conditions; retain rights to enter for inspection/repair without assuming daily control; avoid conduct suggesting operational control.
• Pleading strategy matters: Plaintiffs must plead specific code violations early. Raising new statutory theories for the first time in reply is improper and, even if reached, a general-duty code provision (like Admin. Code § 28-301.1) will not suffice.

3) For Litigants and Courts

• Summary judgment burdens are decisive: Defendants must establish both “open and obvious” and “not inherently dangerous” to prevail on that defense; failure to meet the prima facie burden is fatal regardless of the opposition (Winegrad).
• Fact-sensitivity: “Open and obvious” and “trivial defect” doctrines remain fact-intensive and context-driven. Weather conditions, surface materials, and the method of placement (e.g., unsecured cardboard) are paramount.
• Proof themes for plaintiffs: Evidence that the defendant created the hazardous condition, especially in weather-related cases, can carry plaintiff’s cross-motion and obviate notice disputes.

Complex Concepts Simplified

• Out-of-possession landlord: A property owner who leases premises to a tenant and does not retain day-to-day control. Such landlords generally are not liable for injuries on the premises unless a contract or a specific statute imposes duties, or unless their conduct shows retained control. A mere right to enter to inspect/repair is not enough unless tied to a specific statutory violation and a significant structural defect.
• Open and obvious: A defense arguing the hazard was readily observable by a person using reasonable care. In New York, even an open and obvious condition can still be actionable if it is inherently dangerous. Defendants seeking summary judgment must prove both openness and absence of inherent danger.
• Inherently dangerous condition: A condition that presents a significant risk of harm even if visible, particularly when combined with surrounding circumstances (e.g., wet weather, slippery surfaces).
• Physically insignificant (trivial defect): A minor condition that, considered in context, does not meaningfully increase the risk of injury. Defendants bear the burden to show triviality as a matter of law; surrounding conditions can defeat this showing.
• Constructive notice (landlord context): Imputed knowledge of a defect. For out-of-possession landlords, reservation of a right to inspect/repair can supply constructive notice only where there is a specific statutory violation tied to a significant structural/design defect.
• Summary judgment; prima facie showing: The moving party must present evidence eliminating material factual disputes. Failure to meet this burden results in denial, regardless of the opponent’s submissions.
• Improper new arguments in reply: A party cannot use reply papers to raise new theories not in the initial motion; courts typically disregard them.

Conclusion

Mejia v. 2959 Fulton St. Realty, Inc. delivers a clear, two-pronged message. First, for commercial tenants, makeshift remedies like flattened cardboard in wet or snowy conditions are legally perilous: they are not categorically “open and obvious” or non-dangerous, and, depending on the record, can support summary judgment for a plaintiff on liability. Second, for out-of-possession landlords, the path to liability remains narrow: without a specific statutory obligation linked to a significant structural/design defect, or a contractual assumption of maintenance duties, landlords will not be held to answer for a tenant-created, transient interior hazard. The decision also underscores motion practice fundamentals—prima facie burdens, the contextual nature of “open and obvious” and “trivial defect” analyses, and the impropriety of raising new statutory theories in reply.

In the broader premises liability landscape, this ruling reinforces risk allocation between landlords and tenants while sharpening operational expectations for retailers during inclement weather: abandon improvisation, adopt industry-standard safety measures, and document maintenance rigorously. Plaintiffs, for their part, should plead specific code-based theories early where structural/design issues are implicated and capitalize on evidence of condition creation to streamline liability determinations.