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Landlord Out of Ownership Found Not Liable

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Landlord Out of Ownership Found Not Liable

Postby <Tinytim> » Sun Mar 03, 2002 2:46 am

Landlord Out of Ownership Found Not Liable
John Caher
New York Law Journal
March 4, 2002

A deeply divided appellate panel in Albany last week refused to impose liability on a landlord who created the “functional equivalent” of separate apartments in a single-family home where a child was injured. The Appellate Division, Third Department, reiterated that liability is a factor of occupation and control, not just ownership. In upholding a defendant’s motion for summary judgment, the 3-2 majority concluded that the property owner was an out-of-possession landlord because the record did not establish he exerted sufficient control to assume premises liability. The dissent in Butler v. Rafferty, 89725, maintained that the landlord’s degree of control remains a factual question.

The landlord liability case arises from Albany County and involved a question of whether the owner of a dwelling, who maintained the insurance, could be held liable for an incident that occurred in an adjacent apartment.

Records show that Brian F. Rafferty lived in a single-family residence that he owned in the town of Guilderland, an Albany suburb. In 1991, Maureen Rafferty and her husband constructed a two-story addition to the main residence for their own use. The sole passageway between the original residence and the addition was blocked by a refrigerator in Mr. Rafferty’s residence.

On Nov. 3, 1995, a child was injured in the Maureen Rafferty-portion of the house when she fell from a homemade bunk bed. The girl’s parents sued Ms. and Mr. Rafferty, but Albany Supreme Court Justice Bernard J. Malone dismissed the action against Mr. Rafferty.

Level of Control

Last week, the Third Department justices debated whether Mr. Rafferty exerted sufficient control over the adjacent unit to be held liable. By a thin margin, the court concluded that he did not.

Justice Thomas E. Mercure noted in the prevailing opinion that Mr. Rafferty had nothing to do with the construction of the bunk bed, or even the addition. He said that an agreement between Mr. and Ms. Rafferty giving each exclusive use of their apartments established the “functional equivalent” of two units where Mr. Rafferty was an out-of-possession landlord with regard to that portion occupied by Ms. Rafferty and her family. “We are entirely unpersuaded by plaintiff’s discourse on the rights and responsibilities of tenants in common or her reliance upon a policy of homeowner’s insurance issued to defendant,” Justice Mercure wrote. “Although a tenancy in common carries with it the right to the use and possession of the entire property, [Mr. and Ms. Rafferty] were entitled to and explicitly did grant one another the right to exclusive possession of portions of the property.”

He was joined by Justices D. Bruce Crew III and Robert S. Rose.

Justice Karen K. Peters dissented in an opinion shared by Justice John A. Lahtinen. They maintained that summary judgment was not appropriate since there remains a factual question of “whether defendant had sufficient possession and control over the entire premises to give rise to a duty to have kept his home in a reasonably safe condition.” Donald P. Ford of Thuillez, Ford, Gold & Johnson LLP in Albany appeared for Mr. Rafferty. Lewis B. Oliver Jr. argued or the plaintiff.

Sentence Reduced

The interests of justice case involved a defendant named Walter S. Demeritt, who was convicted by a Rensselaer County jury of attempted second-degree murder. Mr. Demeritt, who had no prior felony record, was involved in an ongoing dispute with a neighbor who had an extensive criminal record. The jury found that Mr. Demeritt shot the neighbor. Rensselaer County Judge Patrick J. McGrath imposed the maximum sentence, 25 years. The Third Department said the penalty was excessive and reduced it to 15 years. Justice Edward O. Spain, writing for the court, observed that Mr. Demeritt is 53 years old and had no prior record except for several misdemeanor convictions for driving while intoxicated and related offenses. He also noted that Mr. Demeritt had rejected a plea bargain under which he would have pleaded guilty to second-degree assault in exchange for a 6-year sentence.

“While we agree that defendant’s intentional conduct in firing a shotgun at a person in a passing vehicle over an ongoing petty dispute warrants a significant and lengthy sentence as it endangered the lives of others, in view of the nature of the defendant’s criminal history, his age, the lack of substantial injury to the victim, the overall circumstances of this crime and considering sentences imposed in cases involving comparable convictions,” the term imposed by Judge McGrath was excessive, Justice Spain said. Presiding Justice Anthony V. Cardona and Justices Mercure, Peters and Anthony J. Carpinello agreed.

Del Atwell of Albany argued for Mr. Demeritt. Assistant Rensselaer County District Attorney Bruce E. Knoll appeared for the prosecution.

Pornographic Files

In the Internet pornography matter, Randall Davis was fired from his state job for violating a settlement agreement that placed him on probation and barred him from misusing state-owned computer equipment. Under the terms of the settlement, Mr. Davis had agreed that a violation of any of the terms would “be cause of automatic dismissal.” Upon returning to work following an agreed-upon suspension, Mr. Davis created a computer file folder after work hours and placed in that file non-work-related Web site addresses, including those of pornographic sites. When the file was detected, Mr. Davis was fired pursuant to the settlement agreement.

The Third Department unanimously upheld Mr. Davis’ dismissal. The court noted the “stringent standard of review” it must apply in cases where probationary employees are fired, and found nothing in this matter to establish that the dismissal was retaliatory or in bad faith.

Justice Carpinello wrote for the court in a decision joined by Justices Crew, Spain, Mercure and Carl J. Mugglin. Appearing were: Steven A. Crain of the Civil Service Employees Association for Mr. Davis and Assistant Attorney General Julie M. Sheridan for the State.
<Tinytim>
 

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