Ford v. Weishaus , 926 N.Y.2d 103 ( 2011 )

Plaintiff alleges that he was injured when he tripped on a cracked floor at premises owned by defendant and leased by plaintiffs employer, presently on a month-to-month basis. In support of her motion to dismiss on the ground that she is an out-of-possession landlord, defendant submitted a 1984 lease imposing maintenance and repair obligations on the tenant. However, she previously gave deposition testimony indicating that changes may have been made to the original lease.

Defendant failed to establish her prima facie entitlement to judgment as a matter of law, and there exists a triable issue as to whether a subsequent written agreement altered defendant’s contractual obligations to repair and maintain the building. Reply affidavits stating that the 1984 lease was the only lease with the tenant and was not renewed were properly rejected as an attempt “to remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply” (Sanford v 27-29 W. 181st St. Assn., 300 AD2d 250, 251 [2002]; see also Migdol v City of New York, 291 AD2d 201 [2002]). Concur— Tom, J.E, Sweeny, Acosta and Manzanet-Daniels, JJ.