O&B Successfully Moves to Dismiss Mold Suit - Court Applies "Out-of-Possession Landlord" Doctrine
February 2005

Justice Walter Tolub of the Supreme Court, New York County, recently granted O&B's motion for summary judgment, thereby dismissing plaintiff's mold-related suit against O&B's client. O&B represented the landlord of a large office building in Manhattan. Plaintiff, an employee of a clothing store which leased space in the building, alleged that she was injured due to exposure to mold and toxic substances in the store.

O&B moved for summary judgment on two grounds:

1. Under the lease for the premises, our client was an out-of-possession landlord and did not have responsibility to maintain the store, its plumbing and HVAC systems. Rather, the tenant was completely responsible for maintenance of the premises. The landlord was only obligated to maintain the common areas of the building.

2. There was no evidence that the landlord proximately caused the growth of mold by, for example, violating the Building Code.

In his decision Justice Tolub applied the "out-of-possession landlord" doctrine to a mold case. While the lease provided that the landlord had a general right to re-enter the premises, inspect and to make needed repairs at the tenant's expense, Justice Tolub held that "the right to re-enter would not impute liability [to the landlord] unless there was an allegation or demonstration by plaintiff of any specific statutory safety provision relating to a structural or a design defect in the building." Plaintiff was unable to make such a showing.

Aside from the lease provisions, plaintiff also could not meet her burden of showing that defendant negligently caused air quality and mold problems in the store and that same caused plaintiff's injuries.

Partner Bennett R. Katz and Associate Eleftherios Stefas represented defendants Madison Third Building Companies, LLC and Sherman Cohen in Jennifer Patt v. Madison Third Companies, LLC and Sherman Cohen, et al. in Supreme Court, State of New York, County of New York, Hon. Justice Walter B. Tolub.

(Prior results do not guarantee a similar outcome.)