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March 4, 2025

Fourth Department Holds Easement Holder Owes a Nondelegable Duty to Maintain Property

In Otero v. Rochester Broadway Theatre League, Inc.,1 the Appellate Division, Fourth Department, held that the owner of an easement over real property owes a duty of care to maintain the property in a reasonably safe condition that is not discharged by a contract requiring the servient property owner to maintain the property. 

In Otero, the plaintiff commenced an action against Rochester Broadway Theatre League, Inc. (RBTL) as the result of a slip and fall on snow and ice in a parking lot adjacent to RBTL’s property. RBTL argued in a motion for summary judgment that it had “absolutely no involvement with” the parking lot and submitted proof that it was owned by a nonparty. The plaintiff responded with evidence that RBTL held a “perpetual easement over and through the exterior parking area.” RBTL replied by submitting—for the first time—a contract between RBTL and the nonparty owner which obliged the owner to keep the parking lot “reasonably clear of ice and snow.” The trial court granted RBTL’s motion, and the plaintiff appealed.

The Fourth Department reversed, holding that the trial court improperly granted RBTL’s motion based on an argument advanced for the first time in RBTL’s reply, and that the easement agreement submitted by the plaintiff sufficiently raised a triable issue of fact because “[a]n easement is … an actual interest in that land.”2

The Fourth Department held that RBTL had a duty to maintain the parking lot in a reasonably safe condition as the owner of the dominant estate granted by the easement agreement. The court rejected RBTL’s argument that the parking agreement alleviated it of its duty to third parties to maintain the property. The court reasoned that, although the parking agreement was relevant between RBTL and the nonparty owner, the duty of an easement holder to third parties is nondelegable and was not abrogated by a covenant of the servient owner to clear ice and snow from the lot. Accordingly, the Fourth Department reversed the order granting RBTL’s motion for summary judgment dismissing the case.

Easement holders must remain aware that, despite agreements with the servient property owner to maintain the property, the agreement will not shield the dominant owner when the rights of injured third parties are implicated.

If you have any questions regarding the content of this alert, please contact Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Kaity McClaine, associate, at kmcclaine@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
                                                                                         

12025 NY Slip Op. 00769 (4th Dep’t Feb. 7, 2025). 
2Id. at *2 (citing Ironwood, L.L.C. v. JGB Props., LLC, 99 A.D.3d 1192, 1194, (4th Dep’t 2012)).

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