Sara David Secures Appellate Division Win in Premises Liability Case: Tenants Not Required to “Prove a Negative” to Obtain Summary Judgement

In a ruling clarifying commercial tenant liability, the Appellate Division, First Department recently issued a decision in Fuentes v. Parkchester South Condominium, Inc., affirming that a commercial tenant moving for summary judgment “is not required to prove a negative proposition” by affirmatively showing it did not cause a sidewalk defect where it has no maintenance duty and no evidence links it to the alleged condition.

The case arose from a trip-and-fall accident on a sidewalk crack adjacent to a cellar door used by a commercial tenant, Leroy Pharmacy. The Pharmacy had no responsibility for sidewalk maintenance under the lease with the property owner and moved for summary judgment upon the completion of discovery. In opposition, Plaintiff argued that the tenant’s use of the cellar doors constituted a “special use,” and argued (without any expert testimony) that the tenant may have caused the condition. The First Department disagreed, holding that “”A commercial tenant moving for summary judgment is not required to prove a negative by establishing that it did not cause or create the alleged defect where there is no evidence that it did so.”

In dismissing the claims against the tenant, the court affirmed that a commercial tenant moving for summary judgment meets its burden of proof on a motion for summary judgment by establishing that it has no statutory or contractual (legal) duty to maintain the sidewalk. The Court specifically held that that “A defendant’s motion papers establishing prima facie that it had no control over, or responsibility for, the premises in question suffices to shift the burden of production to the plaintiff.” The burden of proof then shifts to the Plaintiff to demonstrate a causal connection between the defect and the tenant’s use of the sidewalk with evidence, not just speculation.

This decision serves as a key precedent for commercial tenants in New York and was included in the New York Law Journal’s Decisions of Interest section on July 8, 2026.