Tenant Responsible for Health Code Compliance

Facts: An employee of an office building tenant suffered injuries after she tripped and fell on a raised edge of the metal molding surrounding a trapdoor on the floor of the tenant's pantry room. The purpose of the trapdoor was to access a crawl space approximately three feet high that lies beneath the pantry room floor. The employee sued the owner for negligence and New York Health Code violations. She asked the court for a judgment in her favor without a trial.

The owner argued that the health code, which defines particular requirements regarding constructing and maintaining commercial real estate floors and which defines the scope of responsibility, does not apply to it because it states that “an owner of commercial space is not responsible for compliance if otherwise provided by the terms of a lease by which a tenant assumes responsibility.” The owner asserted that, under the terms of its lease with the tenant, the tenant assumed the health code compliance responsibility for its employees.

Decision: The court denied the employee's request for a judgment in her favor without a trial.

Reasoning: The court ruled in favor of the owner for two reasons: The lease shifted responsibility for following the state's health code to the tenant, and there was no proof that the owner had been negligent in maintaining the trapdoor.

The lease stated: “Tenant shall take good care of the Demised Premises and the fixtures, glass, appurtenances, and equipment therein (including such portions of the Building Systems that are located within the Demised Premises and were installed by Tenant or are not covered by walls and ceilings (e.g. outlets, switches, covers), and at its sole cost and expense shall make all repairs, restorations, and replacements (Repairs) as and when needed to preserve them in good working order and condition, whether or not such Repairs are ordinary or extraordinary, or foreseen or unforeseen at this time, but excluding structural repairs unless covered under the following sentence and also excluding repairs necessitated by negligence or acts of Landlord or Persons Within Landlord's Control. All damage or injury to the Building or the Building Systems outside of the Demised Premises caused by or arising from acts or negligence of Tenant or Persons Within Tenant's Control, including those which are structural, extraordinary, and unforeseen, shall be repaired, restored or replaced by Tenant, at its sole cost and expense.”

The owner argued that, based on those lease provisions, the obligation to comply with the health code provisions belonged to the tenant, which was responsible for maintaining the trapdoor. Moreover, a compliance officer for the tenant agreed that the tenant was responsible for maintaining and repairing the trapdoor in the space it leased.

The owner also argued that the employee failed to establish that it had been negligent. The employee testified that prior to the date of the accident, she never saw the molding surrounding the trapdoor sticking up, she never complained about the trapdoor, nor was she aware of anyone else having complained about the trapdoor. The employee also testified that she had no idea how the condition regarding the trapdoor molding came about or how long it had existed. She stated that the first time she saw the edge of the molding sticking up was immediately after she tripped.

The building's property manager testified that the trapdoor was located in the space the tenant rented, the building engineer had no role with respect to maintaining the trapdoor, and there were no records reflecting any complaints or problems with the trapdoor or its surrounding molding prior to the accident.

The court agreed with the owner that the lease terms shifted its responsibility for complying with the state's health code to the tenant. The court also noted that the health code defined “commercial premises” as: “a place, building, or portion of a building which is used for a purpose other than as a residence, office, or place of worship.” Therefore, the health code provisions were inapplicable to the office in which the accident took place.

Furthermore, for the employee to establish her negligence claim against the owner, she had to demonstrate the existence of a duty flowing from the owner to her, a breach of that duty, that the breach directly caused her injury, and proof of actual damage. But the court noted that the owner could not be liable for the allegedly dangerous condition because the employee could not establish that it either created the dangerous condition or had prior actual or constructive notice of the condition.

• Miki v. 335 Madison Avenue, LLC, Milstein Properties Corp. and General Electric Capital Services, Inc., January 2011