Out-of-Possession Landlords Not Liable for Non-“Structural” Garage Rolling Gates Under a Narrow Lease Definition; Futile Administrative Code § 28-301.1 Amendments Properly Denied

1. Introduction

Leone v. R&J Realty Co., LLC (2026 NY Slip Op 03786 [2d Dept 2026]) arises from a workplace incident in October 2016 in which plaintiff Marielle Leone allegedly sustained injuries when a portion of a garage rolling gate fell on her at premises leased by her employer, JECG Corp.. The building was owned by landlords Jeffrey Anschlowar and Robert Anschlowar. After multiple actions were filed and later consolidated, the litigation expanded to include a third-party action and a second third-party action involving JECG Corp. and its owner, Richard Gettinger.

The central issues on appeal (as to the affirmed judgment) were:

  • Whether the landlords, as out-of-possession landlords, could be liable in common-law negligence for injuries caused by the garage rolling gate.
  • Whether plaintiffs should be permitted to amend their bill of particulars to assert violations of Administrative Code of the City of New York § 28-301.1.

A threshold appellate issue also arose: whether certain appeals should be dismissed as abandoned where the appellants’ briefs did not seek reversal or modification of the challenged judgment.

2. Summary of the Opinion

The Second Department:

  • Dismissed as abandoned the appeals from the judgment entered August 28, 2023, because the briefs did not seek reversal or modification of any portion of that judgment.
  • Affirmed the judgment entered August 1, 2023, which granted summary judgment to the landlords dismissing the negligence cause of action against them.
  • Affirmed the denial of plaintiffs’ cross-motion to amend the bill of particulars to assert Administrative Code § 28-301.1 violations, holding the proposed amendment was “palpably insufficient and patently devoid of merit.”

3. Analysis

A. Precedents Cited

1) Abandonment of appeals

  • Teodoro v C.W. Brown, Inc., 200 AD3d 999, 1000; and D.S. v Poliseno, 189 AD3d 1102, 1104: These cases supplied the governing appellate practice principle applied here: an appeal may be dismissed as abandoned when the appellant’s brief fails to argue for reversal or modification of the challenged order/judgment. The court used them to dispose of the August 28, 2023 judgment appeals without reaching the merits.

2) Out-of-possession landlord liability framework

  • Mallet v City of New York, 184 AD3d 633, 633 (internal quotation marks omitted), and Alexandre v Shih T. Wang, 241 AD3d 1223, 1224: These cases provide the core rule quoted by the court: an out-of-possession landlord is generally not liable unless it retained control and had a duty imposed by statute or assumed by contract or course of conduct. They anchored the court’s analysis and framed what plaintiffs needed (but did not) plead and prove.
  • Sandoval v GWKMAR Assoc., LLC, 227 AD3d 923, 924; and Gallina v 7901-11 13th Ave. Realty Corp., 186 AD3d 1617, 1618: These cases reinforced the summary judgment pathway for out-of-possession landlords where there is no statutory violation alleged and no contractual/course-of-conduct duty covering the instrumentality. The court relied on them in concluding the landlords met their prima facie burden and plaintiffs did not raise a triable issue.

3) Interpreting “structural” obligations in leases

  • Greco v St. Bridget's Church at Westbury, Queens Co., 231 AD3d 1019, 1020; and Michaele v Steph-Leigh Assoc., LLC, 178 AD3d 820, 821: These cases supported the court’s narrow reading of lease “structural” responsibilities. Here, the lease defined “structural” as “roof, load bearing walls and concrete slab,” and the court held that definition did not encompass the garage rolling gate—defeating plaintiffs’ attempt to tie liability to a contractual maintenance obligation.
  • Alexandre v Shih T. Wang, 241 AD3d at 1224: Cited again to support the separate point that landlord conduct must actually indicate assumption of a duty; mere ownership or limited involvement does not suffice.

4) Amendment of a bill of particulars—futility

  • Mejia v 2959 Fulton St. Realty, Inc., 240 AD3d 881, 884; Jin Hee Son v Zafiara Realty, Inc., 218 AD3d 554, 556; and Anderson v ML Real Estate Holdings, LLC, 242 AD3d 1160 (see generally): These authorities supplied the standard applied: leave to amend may be denied when the proposed amendment is “palpably insufficient and patently devoid of merit.” The court used that standard to uphold denial of plaintiffs’ attempt to add Administrative Code § 28-301.1 violations.

B. Legal Reasoning

1) The pleading posture mattered: common-law negligence with no statute alleged

The court emphasized that “the amended complaint sounds in common-law negligence” and that “the plaintiffs do not allege the violation of a statute.” That pleading choice narrowed the available routes to landlord liability. Under the out-of-possession landlord rule, absent a statute, plaintiffs had to show a duty retained/assumed by contract or course of conduct (and, typically, some retained control).

2) Prima facie showing: out-of-possession + no contractual/course-of-conduct duty for the gate

The landlords carried their prima facie burden by establishing they were out-of-possession and “were not bound by contract or a course of conduct to maintain the premises” as to the relevant condition. Crucially, although the lease placed “structural maintenance” on the landlords, the lease itself confined “structural” to “roof, load bearing walls and concrete slab.” The court treated that definition as dispositive: the garage rolling gate “did not” fall within it.

3) No assumed duty through conduct

Even where a lease is narrow, plaintiffs sometimes attempt to show that landlords assumed a duty through a pattern of repairs, inspections, or operational involvement. Here, the court found the landlords’ conduct “did not indicate that they had assumed a duty.”

4) Failure to raise a triable issue of fact

With the landlords’ prima facie showing made, the burden shifted. The court held plaintiffs “failed to raise a triable issue of fact,” so summary judgment dismissal of the negligence claim against the landlords was proper.

5) Denial of amendment to add Administrative Code § 28-301.1

Plaintiffs sought to amend their bill of particulars to assert Administrative Code § 28-301.1 violations. The court affirmed denial because the proposed amendment was “palpably insufficient and patently devoid of merit.” In practical terms, the ruling signals that a late-added code theory must be legally viable on its face and meaningfully connected to the accident-producing condition; otherwise, amendment will be denied as futile.

6) Abandonment doctrine applied to the August 28, 2023 judgment appeals

Without addressing the substance of the August 28 judgment, the court dismissed those appeals because the appellants’ briefs did not request reversal/modification of any part of that judgment. This is a procedural holding with real consequences: appellate review is not automatic; it is driven by the issues actually argued.

C. Impact

  • Lease drafting and litigation over “structural” duties: The decision underscores that courts will enforce narrow, enumerated definitions of “structural” maintenance responsibilities. Where “structural” is expressly limited (here: “roof, load bearing walls and concrete slab”), plaintiffs may have difficulty recharacterizing equipment (like a rolling gate) as structural to reach an out-of-possession landlord.
  • Focus on statutory theories early: Because plaintiffs did not plead a statutory violation initially—and later failed to add one successfully—the case highlights the strategic importance of evaluating potentially applicable statutes/codes at the outset, rather than relying on common-law negligence against an out-of-possession landlord.
  • Futility policing for amendments: The reaffirmation that amendments may be denied as “palpably insufficient and patently devoid of merit” may curb attempts to add broad code citations late in the case without a clearly supportable legal and factual basis.
  • Appellate practice warning: The abandonment dismissal provides a pointed reminder: if an appellant’s brief does not seek concrete relief as to a judgment/order, the appeal is vulnerable to dismissal regardless of whatever arguments may exist in the record.

4. Complex Concepts Simplified

  • Out-of-possession landlord: A landlord who has leased the premises and does not occupy or control day-to-day conditions. Such landlords are usually not liable for injuries on the premises unless a recognized exception applies (retained control + statutory duty, or duty assumed by contract or conduct).
  • Retained control: Continuing authority over the area/condition—e.g., the right to direct maintenance/repairs in a way that is more than a remote ownership interest.
  • Duty imposed by statute: A legal obligation created by legislation or code provisions. If properly applicable and pleaded, it can create or strengthen a basis for liability.
  • Assumed by contract or course of conduct: Liability can arise if a lease makes the landlord responsible for the condition, or if the landlord’s repeated practice effectively takes over responsibility (e.g., routinely repairing the specific item).
  • Summary judgment / prima facie entitlement / triable issue of fact: Summary judgment is pretrial dismissal when there is no genuine factual dispute requiring a trial. The movant must first show entitlement as a matter of law (prima facie). The opponent must then show a real factual dispute (triable issue).
  • Bill of particulars: A litigation document that amplifies the pleadings by specifying the claims and alleged acts/omissions. Amendments are allowed, but not when futile.
  • “Palpably insufficient and patently devoid of merit”: A court’s shorthand for futility—i.e., even if allowed, the new allegation would not state a viable basis for relief.
  • Abandoned appeal: An appeal can be dismissed if the appellant does not actually argue for changing the order/judgment being appealed.

5. Conclusion

Leone v. R&J Realty Co., LLC reinforces two practical rules. First, out-of-possession landlords will obtain summary judgment where the claim is pleaded purely in common-law negligence, the lease’s maintenance obligations do not cover the accident-producing condition, and the record does not show an assumed duty by conduct—particularly where “structural” duties are narrowly defined and exclude the instrumentality at issue. Second, attempts to add Administrative Code theories late via an amended bill of particulars will be rejected when the proposed amendment is deemed futile. Procedurally, the decision also underscores that appellate courts will dismiss appeals as abandoned when the briefs do not seek specific reversal or modification.