This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A landlord that has handed over a property to a tenant is generally not responsible for its condition, but it may be held liable if it kept a right to reenter to make repairs and a specific building safety law was violated. Here, the First Department affirmed the denial of summary judgment to the landlord of a Greenwich Village bar where a patron fell down basement stairs, because the landlord did not address the statutes and codes the patron cited.
The case
- Court
- Appellate Division, First Department
- Decided
- October 13, 2026
- Case
- Cutter v Bayard’s Ale House
- Citation
- 2026 NY Slip Op 05902
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff, a patron at Bayard’s Ale House in Greenwich Village, fell down stairs to the basement, reached through two doors in the floor. When opened, the doors stood straight up and, according to his expert, left about 13¼ inches between the wall and the doors to pass. Minutes before the fall, a bar employee left one of the doors open when he went down to change his clothes at the end of his shift. The bar leased the space from Nevins Realty LLC, an out-of-possession landlord. Nevins moved for summary judgment, including on its claim that the bar must indemnify it under the lease. The Supreme Court, New York County, denied the motion, and Nevins appealed.
The holding
The First Department unanimously affirmed. A landlord out of possession may still be liable “when the landlord has a right of reentry under the lease to make needed repairs and liability is based upon the breach of a specific statutory design safety provision” (2026 NY Slip Op 05902, *1), and this lease gave Nevins a right to reenter to make repairs to comply with laws (id.). Nevins “failed to address the specific statutes and safety codes that plaintiff cited in his supplemental bill of particulars” (id. at *2). Blaming the employee did not help, because even if leaving the door open could be a cause of the accident, “there can be more than one proximate cause of an incident” (id.), and, in any event, the plaintiff’s expert raised questions of fact about building code violations (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Batchilly v 610 8th Ave. Corp. (252 AD3d 401) and Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp. (299 AD2d 230).
What it means
- An out-of-possession landlord has leased a property and turned over possession and control to a tenant. As the court said, it is generally not liable for the property’s condition after that.
- Because an accident can have more than one cause, a landlord asking to be let out of a case must address the specific statutes and codes an injured person cites. Here, attempting to place all the blame for the accident on the tenant’s employee was not enough.
- This decision does not decide who was at fault, and it leaves the landlord’s indemnity claim against the bar for later. The landlord stays in the case for now.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
We note that the court did not say the bar employee who left the door open was blameless; it held that his act did not have to be the only cause. If someone leaves a floor-access door open in a hallway that may be too narrow to begin with, both the person who left the door open and the narrow hallway design may share the blame. Compare our entry on Cambero-Minaya v 211 Schermerhorn Development, where a worker’s late attempt to add Industrial Code sections to his bill of particulars failed. We believe two lessons follow. 1. After a fall at a bar, store, or restaurant, the building’s owner may share responsibility with the business, so the lease and the building code should be examined early. 2. Code violations should be identified in the bill of particulars, on time, with an expert who can explain them. Sometimes the building itself is part of the story.
Topics
Court: First Department. Year: 2026. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 13, 2026. Posted October 14, 2026.
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