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 leased out a property, and is responsible under the lease for structural repairs, is generally not responsible for a condition that is not structural. Here, the First Department affirmed the dismissal of the claims against a restaurant’s landlord, because the low lighting the plaintiff blamed for the fall was set by the restaurant’s employees, and the plaintiff’s expert did not connect the other conditions listed to the fall.
The case
- Court
- Appellate Division, First Department
- Decided
- October 20, 2026
- Case
- Mella v Russian Samovar, Inc.
- Citation
- 2026 NY Slip Op 06065
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that low lighting in a restaurant was the proximate cause of a fall, and sued Russian Samovar, Inc. and Alvin Nederlander Associates, Inc. The court described Nederlander as an out-of-possession landlord responsible under the lease for structural repairs. The plaintiff’s bill of particulars and expert affidavit also listed other defects, including the stairs and handrail. Nederlander moved for summary judgment dismissing the claims against it and on its claim that Russian Samovar must indemnify it under the lease. The Supreme Court, New York County, granted the motion, and Russian Samovar appealed.
The holding
The First Department unanimously affirmed. It held that Nederlander, “as an out-of-possession landlord, was not contractually obligated to make repairs or maintain the lighting which plaintiff alleged was the proximate cause of the accident” (2026 NY Slip Op 06065, *1). “The alleged low lighting in the restaurant was not a structural defect because it was set by the restaurant’s employees,” and there was no evidence that the lighting was low because of a failure to maintain the electrical system (id.). The expert’s affidavit did not provide any “evidence connecting the alleged violations . . . to [plaintiff’s] fall, other than speculation” (id., quoting Lee v Widlanski). And even if the stairs and handrail were the proximate cause, they “are not significant structural or design defects for which Nederlander had a contractual obligation to maintain” (id.). The court also held that Nederlander was entitled to contractual indemnification from Russian Samovar (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Ebrahim v Twin Dev., LLC (237 AD3d 610), Uppstrom v Peter Dillon’s Pub (172 AD3d 497), and Bawa v JJ. Operating Inc. (234 AD3d 517).
What it means
- An out-of-possession landlord has leased a property and turned over possession and control to a tenant. Whether it may still be responsible can depend on what the lease requires it to repair and on specific safety laws (see our entry on Cutter v Bayard’s Ale House).
- A condition the tenant’s own staff controls, such as how bright the lights are, was not a structural defect the landlord had to fix.
- An expert’s affidavit must connect each alleged violation to the fall. A list of defects, without that connection, was speculation.
- The decision addresses only the claims against the landlord, not the claims against Russian Samovar.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
This decision is a counterpoint to our entry on Cutter v Bayard’s Ale House, decided by the First Department one week earlier. In both cases, someone fell at a bar or restaurant and sued the building’s landlord as well as the business. In Cutter, the landlord stayed in the case: its lease let it reenter to make repairs needed to comply with the law, it did not address the specific codes cited, and the patron’s expert explained why structural or design defects violated the building code. Here, the hazard blamed was lighting the restaurant’s own staff set, and the expert did not tie the other conditions to the fall. In our view, it is a little like renting out a house: the owner may have to answer for the roof and the walls, but not for whether the tenant keeps the lamps turned on. Two practical points. 1. After a fall in a store, bar, or restaurant, photograph the lighting and the exact spot if you can do so safely, and get legal advice promptly. 2. For lawyers, an expert should explain how each defect caused the fall, not only that it exists. Who controls a condition can decide who answers for it.
Topics
Court: First Department. Year: 2026. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 20, 2026. Posted October 20, 2026.
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