In this insightful interview, Elan Wurtzel and Peter Morra delve into the intricate world of real estate and personal injury law. They discuss various scenarios, from condominium accidents to real estate liabilities, highlighting the complexities of property ownership and tenant responsibilities. The conversation sheds light on the nuances of legal obligations in different situations, such as out-of-possession landlords and the implications of building code violations. This dialogue deepens into specific legal cases and offers a broader understanding of property ownership, management’s responsibilities, and potential liabilities.
Elan, would you like to introduce yourself?
Elan Wurtzel: Good afternoon. Thanks for having us, Loren. My name is Elan Wurtzel. I’m an attorney with a practice in Plainview, New York, operating throughout the metropolitan area. We concentrate on personal injury and negligence cases, helping people who are seriously injured obtain compensation for their injuries caused by others’ negligence.
Peter, thank you for coming today. Would you like to introduce yourself and tell us a little about what you do?
Peter Morra: My pleasure, Loren. I’m Peter Morra. I specialize in real estate land use and everything related to real estate in Garden City, New York. I represent small clients, individuals, and corporations in various real estate matters, including some real estate litigation.
Let’s start by discussing the first case where the condominium had a trip-and-fall accident in the vestibule.
Elan Wurtzel: Sure. This is a case that we just resolved. Our client, a house cleaner, was entering a recently constructed condominium in Manhattan. She tripped and fell in the vestibule, covered with cardboard that wasn’t secured properly, creating a tripping hazard. She was seriously hurt, so we brought a lawsuit.
In a condominium, there are multiple owners. We wouldn’t sue 100 owners, so we had to determine who to claim against. We discovered that the condominium had a Board of Trustees for the condominium, who we identified as the proper entity to bring a claim against for our client’s injuries.
Peter Morra: Generally, you’d look up public records. In New York, they’re online through the ACRIS system in Nassau County. You can look up a deed, if it’s recent enough, to see who the owner of the property is. But as you mentioned, with a condominium, the individual owners own their specific units but not necessarily the common areas. Typically, the condo board or the Board of Trustees would be responsible for the upkeep of the common areas. In a condo case, if the fall happened in a common area, it’s not owned by an individual owner. You’ll likely be suing the owners’ representative because the board or the trustees don’t own it; it’s commonly owned by the unit owners in a percentage interest.
Elan Wurtzel: In this particular case, the building was still under construction at the time of the accident. There is a statutory obligation for an owner of a property to allow for safe ingress and egress from a property. The construction company caused the dangerous conditions, but the property owner had a non-delegable duty to provide a secure way to enter and leave the building. We also sued the construction company. In resolving the case, the construction company took the lead and accepted the lion’s share of responsibility because they were the ones that created the dangerous conditions that caused the accident.
In the personal injury field, you could have owners who are not the actual owners of the property but are considered to be owners under statutory provisions. We had a case where a construction worker was seriously injured on a site at a State University upstate. We did a title search and discovered the owner of the land was the State of New York. We sued the state, but the defendant argued that the New York State Dormitory Authority, which managed the construction, was responsible. The lower court initially dismissed the case, but the Appellate Court ruled that under the statute, an owner, even if they don’t know anything about the construction, is responsible for providing protections under Labor Law 240. The Dormitory Authority was also considered to be an owner under the statute.
Peter, in real estate practice, do you see a distinction between parties, owners, licensees, tenants, and lessors? How does that all play out?
Peter Morra: Absolutely. If you need help finding an owner of record on ACRIS in New York City or Nassau County, a title search is the way to go. You call up your title company, and they provide a search on the property, showing any liens and who has an interest in the property. The case you described is fascinating, especially considering Section 240’s strict liability for an owner. In any situation, the property owner has certain obligations, but typically, an owner with tenants will try to pass on as many of those obligations to their tenant through a lease. So, they usually have contractual obligations to ensure the landlord.
Indemnify the landlord against any actions that typically happen on the property which are not the landlord’s responsibility. If the landlord or an agent of the landlord goes on the property and causes an issue, those are things that you typically cannot get out of using a lease.
Elan Wurtzel: That raises a great point. Is there ever a situation where the property owner, the landlord, is not responsible for a dangerous condition that causes an accident?
You might think that can never be, but there are many leases where the landlord is considered out of possession, meaning they have no control over the property. They’re not involved day-to-day and have delegated all responsibility, power, and maintenance to their tenant. So, suppose a client is injured due to unsafe conditions, and the landlord is considered an out-of-possession landlord. What recourse does an injured person have if the tenant goes out of business, files for bankruptcy, or has no insurance? There are certain dangerous conditions, like a wet, dirty, or slippery floor, that the tenant should have taken care of, where an out-of-possession landlord wouldn’t have responsibility.
But what about a building code violation? An out-of-possession landlord is responsible for that. We have seen many cases, especially staircases, where specifications under New York City and State building codes have specific dimensional requirements. People are often unaware that the variation in height of steps from one step to another cannot be more than approximately an eighth of an inch difference. Many times, especially in older places or where people do construction independently, the variation changes more than an eighth of an inch between steps, causing a tripping hazard. This violates state and local codes, and an out-of-possession landlord would be responsible, even though they may not know about it. It’s a condition that exists for an extended period, and they must eliminate it. So, even though there might be a tenant who handles the day-to-day if they’re out of business or have insufficient insurance coverage, the landlord would still be responsible. The landlord’s insurance coverage would be available to pay compensation.
Elan Wurtzel: Let’s talk about another situation. I know Peter will have a little fun with this. Let’s take a pool on someone’s property that encroaches onto the neighbor’s property by 20 feet. What’s wrong with the pool? There’s no fence around it. Under every local code, you usually have to have, at minimum, a four-foot fence either around the pool or the entire property to ensure that no one walks in and jumps in the water. So, you have this pool; it’s on Owner A’s property but encroaches on Owner B’s. There is no fence around the property. Someone gets hurt and injured. Whose pool does it belong to? Although the pool may belong to Owner A, it’s also on Owner B’s property, and owners must maintain their structures in reasonably safe condition. It’s an exciting scenario as to who would have responsibility and liability. You’ve got to know that Owner B, who says, “Hey, that’s not my pool. I don’t go swimming in it. It doesn’t belong to me,” is going to be surprised to learn that under the law, Owner B may have partial responsibility for an accident. I know Peter has dealt with those situations, and I don’t understand how things like that happen, how someone builds a pool on someone else’s property, but Peter can tell us a little about something like that.
Peter Morra: It’s pretty unusual, even more so than usual. Elan knows I’m handling a case like this for an ongoing client, the town of Oyster Bay. As we discussed, the regulation states that your pool must be at least 15 feet from the property line. However, laws vary across different zones and centers, and in this specific zone, they measured from the fence, not the property line, and installed a pool. The wall was about 18 feet off the correct spot. So, the strip of 15 feet is on the neighbor’s property and a tiny corner of the pool. And, you know, it’s fenced off. That leads to complicated property issues, such as out-of-possession and adverse possession. The neighbor could gain control of the property where the pool is located. And yes, you need help with your licenses, invitees, and guests. For instance, if you, as the neighbor without the pool, invite someone onto your property and they get injured in the part of the pool that is on your property, you’re facing a significant problem. You’ve essentially brought them onto the property, and you’re presumably aware of the situation. Even if you weren’t aware, you should’ve been. It’s someone else’s pool on your property, after all. It’s peculiar. In my case, for 40 years, no one was aware until the pool, built in 1986, brought the issue to light because the town never permitted the pool’s closure since it’s not on the rightful property. And you can’t enclose it with a fence. If you can’t control the entire wall, that’s a significant issue. You can get variances for side issues, but you must encircle the pool with a fence to comply with the code. Securing the pool becomes only possible if you own the property where the wall should go. My clients have enjoyed this pool for quite some time, and it’s been fine. However, from a liability standpoint, the neighbor with the pool would be responsible if someone gets injured around their pool, regardless of whether it’s on their property or the neighbor’s. Unfortunately, the neighbor might be surprised to learn that they could be liable too, especially if the injured party is someone they invited onto their property.
Elan Wurtzel: Absolutely, there’s a lot of liability involved, especially given that tragic incidents can occur around pools, particularly here on Long Island. Imagine using your backyard only to discover that 15 feet belongs to someone else. Suppose someone gets injured in that strip of land due to a hazardous condition. In that case, it can lead to serious liability issues, even if you, as the owner, weren’t directly responsible for the condition but were aware of it. I recall a client who tripped and fell on a cracked sidewalk in a shopping mall. The property, owned by an individual landlord, could have been better managed. The landlord’s main activity was collecting store rent, but he ignored the dangerous sidewalk condition for years. When we got involved, our stance was clear: merely collecting rent isn’t sufficient. Property owners must ensure their properties are safe for public use. My client, in particular, fell at night, which made the hazardous condition even less visible.
Peter Morra: Indeed, property owners should conduct regular inspections, either personally, through an employee, or by hiring a professional. More than simply shifting liability onto tenants is required; you will likely face lawsuits as a property owner. Property owners can still be sued even if an incident occurs inside a store where the landlord has no direct control. It’s negligent for a landlord to overlook the conditions of common areas. Even if liability is shifted to tenants, disputes about responsibility can arise. For example, a tenant might argue that the hazard was located between stores, questioning whose responsibility it was. Therefore, landlords should use reasonable care to ensure their property is free from significant defects. If a defect is reported, it should be addressed promptly. A common issue in property maintenance litigation is the need for record-keeping. Courts often rule that if a property owner can’t provide inspections and maintenance records, it’s as if no maintenance was done at all, leading to potential liability claims. Proper maintenance practices, protocols, and record-keeping are essential to protect a property owner’s interests. Many landlords, especially in more rural areas, are small-scale operators who may need more infrastructure for detailed record-keeping. However, even large companies sometimes need help in this regard. Regular property checks are crucial, regardless of the property owner’s scale.
Elan Wurtzel: Peter and I have known each other for many, many years, and we do many things together, refer clients back and forth, and work together. Talking to Peter, relying on him, and asking questions is a privilege. It’s been helpful to my practice. So, I love working with Peter.
Peter Morra: No, it’s my pleasure, and Elan knows. I send them as many personal injury things as possible, some good and some not. Still, he sorts them out. When he refers people over, they have nothing but good things to say about him.
Peter, how can people get in contact with you?
Peter Morra: My website is petermorralaw.com, and my email is [email protected]. My phone number is 516-248-8111.
