NY Appellate Team Obtains Affirmance of Summary Judgment to Landlord in Tenant’s Lawsuit Alleging Catastrophic Injuries

New York, N.Y. (June 20, 2025) - In Tucker v. All Metro Home Care Servs., Inc., ___ A.D.3d ___, 2025 NY Slip Op 03640 (1st Dep’t 2025), the plaintiff alleged to have been rendered quadriplegic after falling from the window of his second-story apartment in 2013. At the time of his fall, the plaintiff was a mentally disabled adult under the 24/7 care of a home health agency (which was also a named co-defendant). The firm represented the landlord/owner of the building in the action, brought in Supreme Court, Bronx County. The plaintiff’s primary theory of liability was that, given the plaintiff’s known mental infirmities, the landlord had a “heightened duty of care” under the common law to install window guards in the apartment. 

After years of discovery, Partners Jennine A. Gerrard and Clare Cunningham cross-moved for summary judgment on the landlord’s behalf. Both argued that neither any statute nor the common law imposed a duty of care upon the landlord to install window guards for the benefit of an adult tenant, regardless of the tenant’s mental condition. In particular, Jennine and Clare cited Milano v. 340 E. 74th St. Owners Corp., 158 A.D.3d 479, 479 (1st Dep’t 2018), where the Appellate Division, First Department, held that New York City’s “Window Guard Law” (24 RCNY 12-10(g)), which requires the installation of window guards under certain circumstances, has no application to apartments not occupied by a child ten years of age or younger. In opposition, the plaintiff largely raised procedural objections to the motion. On the merits, the plaintiff argued that, because, in his view, his fall was foreseeable, the landlord had a “heightened duty of care” at common law to install window guards, irrespective of the inapplicability of the Window Guard Law. The Supreme Court, Bronx County, granted the motion in full, dismissing all claims against the landlord. 

In response to the plaintiff’s appeal, Partner Dean Pillarella of the firm’s Appellate Practice, argued that the plaintiff’s theory of liability put the cart before the horse. For  “[f]oreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist.” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001). Thus, whether or not the plaintiff’s fall was foreseeable (which Dean argued was not the case in any event) was irrelevant, as neither any statute nor the common law imposed a duty of care upon the landlord to install window guards for the benefit of an adult tenant. At common law, in particular, Dean argued that any such duty lay with the tenant, not the landlord, in the absence of any regulation providing otherwise. See Milano, 158 A.D.3d at 480 (“Even if the window or ledge were viewed as a dangerous condition, the duty to eliminate the danger by installing guards or stops was imposed on the tenant, not the landlord.”). As a policy matter, Dean argued that the “heightened duty of care” the plaintiff proposed would impose a leviathan duty upon landlords by rendering them, in effect, caretakers for the disabled—despite that no duty of supervision exists in the ordinary landlord-tenant context. 

The Appellate Division agreed in full and affirmed the award of summary judgment to the landlord.  In particular, the panel held, “n this ordinary landlord-tenant relationship, plaintiff proffered no evidence that the apartment window from where he fell and severely injured himself, either by design or condition, posed a dangerous hazard.” Thus, “Supreme Court properly granted [the landlord’s] cross-motion dismissing plaintiff’s complaint….”