Opinion
CV156024059
02-16-2017
Edwina Korineck v. Ridley-Lowell Business and Technical Institute, Incorporated et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT RIDLEY-LOWELL BUSINESS TECHNOLOGY INSTITUTE'S MOTION FOR SUMMARY JUDGMENT (#148)
Timothy D. Bates, J.
INTRODUCTION
In this motion, the defendant, Ridley-Lowell Business Technical Institute, Inc. (hereinafter " Ridley-Lowell or defendant") moves for summary judgment on count one of the complaint contending that it did not own or control the premises where the plaintiff, Edwina Korineck (hereinafter " Korineck or plaintiff") fell and, therefore, had no liability for the injury and damages sustained by the plaintiff. The plaintiff, in her objection to the motion (#157), contends that there is a genuine issue of material fact as to whether Ridley-Lowell had possession or control where the plaintiff fell and, therefore, the motion for summary judgment should be denied.
FACTS
This action arises out of a claim by the plaintiff, Korineck, that as a business invitee on the premises owned by 470 Bank Street, LLC, managed by U.S. Property, Inc., and leased, in part, by the defendant, Ridley-Lowell, she was caused to fall, and sustain injuries, on a loose and defective tile at the top of a stairway leading into the defendant's school. In her substituted complaint, filed on June 7, 2016, the plaintiff alleges the following facts.
Although 470 Bank Street, LLC and U.S. Property, Inc. are parties to the complaint, Ridley-Lowell Business & Technical Institute, Inc. is the only defendant involved in the present motion and will be referred to as the defendant for purposes of this memorandum.
The plaintiff alleges that 470 Bank Street, LLC owns, operates, manages, controls, and/or maintains the building located at 470 Bank Street in New London, Connecticut. She also alleges that U.S. Property, Inc. owns, operates, manages, controls, and/or maintains the building located at 470 Bank Street in New London, Connecticut. And she further alleges defendant, Ridley-Lowell owns, operates, manages, controls, and/or maintains a career technical school at 470 Bank Street in New London, Connecticut. These parties, she claims, were responsible for maintenance and repairs of the common walkways, stairways, aisles, and entryways throughout the building. The plaintiff, a student at the defendant's school, states she tripped on a loose, unsecured, and uneven floor tile on the second floor stairway landing causing her to fall and sustain injuries. The substituted complaint, filed on June 7, 2016, is a three-count complaint. The first count claims negligence on the part of Ridley-Lowell; the second count claims negligence on the part of U.S. Properties, Inc.; and the third count alleges negligence on the part of 470 Bank Street, LLC. This matter concerns the first count only.
On July 1, 2016, defendant, Ridley-Lowell filed this motion seeking summary judgment on count one and claiming that there remains no issue of material fact as to liability owed to the plaintiff on the part of the defendant. The defendant argues that because the plaintiff fell in a common area, and the defendant did not have possession or control over that area, it is not liable. In addition to its motion and memorandum, the defendant submitted the following exhibits (#150): an uncertified, partial deposition of the plaintiff, Edwina Korineck; an uncertified, partial deposition of Christopher Lage; photographs of the stairway landing where the alleged fall occurred; a lease between non-party, R.I. Hillcroft, Inc. and the defendant dated July 1994; a copy of the requests for admission from U.S. Properties, Inc.; an affidavit of Tara Houle, administrator of Ridley-Lowell; and an affidavit of Terrence Weymouth, owner and operator of Ridley-Lowell.
Uncertified depositions are typically not valid documents. However, it is within the court's discretion whether the court should consider an uncertified deposition when deciding a motion for summary judgment. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). This court finds it within its discretion to consider these depositions as part of the relevant evidence it uses in making its decision on this motion for summary judgment.
Both affidavits were submitted with the other exhibits unsigned in #150. However, this defect was cured by resubmission by defendant on August 12, 2016 (#154 and #155). To date, the plaintiff has not objected to these affidavits.
On October 6, 2016, the plaintiff filed its objection to the motion. Oral Argument was heard on October 11, 2016.
ANALYSIS
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
In its motion for summary judgment (#148), along with its memorandum of law in support (#149), the defendant argues that 470 Bank Street is and was, at the time of the fall, owned by 470 Bank Street, LLC and that the building is and was managed by U.S. Properties, Inc. The defendant argues that the lease between the defendant and 470 Bank Street, LLC provides that the defendant leases 9, 030 square feet of enclosed, commercial space on the second floor of the building at 470 Bank Street, New London, Connecticut, for purposes of the operation of a career technical school. The defendant argues that the leased space does not include the stairway landing where the plaintiff fell, and that the stairway was a common area. The defendant also argues that the landlord, 470 Bank Street, LLC, pursuant to the lease, had reserved the exclusive right to maintain and repair all common areas of the building and that the defendant was specifically prohibited in the lease from making any repairs on said common areas. Therefore, the defendant argues that it was not responsible for defects in the area where the plaintiff fell and therefore cannot be liable.
The plaintiff counters in her objection to summary judgment (#157) that the defendant does have possession and control over the area in question and therefore owes a duty to the plaintiff to repair the area where she fell. The plaintiff argues that the defendant has control because 1) the defendant uses the entirety of the second floor of the building and had exclusive use of the area in question; 2) defendant opens its premises to the public and therefore, owes a duty to foreseeable plaintiffs to maintain the entrance and exits of the area used by the school; and 3) the defendant is contractually obligated to share in the costs of maintenance and repair with the landlord, a fact that is sufficient to show control.
By way of reply (#158), the defendant argues that the mere fact that they are contractually obligated to contribute a share of operating funds to the landlord for maintenance and repair of the building, generally, does not give rise to having control over the area in question. The defendant further argues that because control is the essence of premises liability in Connecticut and that by the terms of the lease, the landlord, not the defendant, has control over the common area where the plaintiff allegedly fell, the defendant cannot be held liable.
The lease between the defendant tenant and the landlord, 470 Bank Street, LLC, has been properly brought before the court and has been verified as the lease in effect on July 10, 2013. For purposes of the lease, it has been established that 470 Bank Street, LLC is the landlord and the defendant is the tenant. It is not disputed that the plaintiff asserts a claim of injury which occurred on the property located at 470 Bank Street in New London, Connecticut, owned by 470 Bank Street, LLC. It is disputed, however, what entity was responsible for the defective area which caused the plaintiff's injuries.
Due to a concern about the validity of the lease on November 29, 2016 (#150), the court ordered the parties to submit a valid lease (#162), or documentation showing validity of the lease submitted. In response to this order, the defendant replied (#164) resubmitting the same lease and an affidavit of Terrence Weymouth contending that regardless of the names present on the document, that this was the lease valid at the time of the alleged fall as it was the lease transferred from RI Hillcroft, Inc. to 470 Bank Street, LLC. The plaintiff has not raised objection to the validity of this lease.
" Liability for an injury due to defective premises does not depend on title, but on possession and control." Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). " [L]andlords [ ] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant." LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002). However, landlords who retain control over the area in question will be subject to liability. Id. " In general, to have control of [a] place is to have authority to manage, direct, superintend, restrict or regulate." (Internal quotations marks omitted.) Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822 (1971). " [U]nless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in light of all the significant and attendant facts which bear on the issue . . . In other words, if the terms of control are not expressed between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances." (Citations omitted; quotation marks omitted.) LaFlamme v. Dallessio, supra . However, the Connecticut appellate courts have held that a lessor and lessee may contract the issue of control in a lease; Martel v. Malone, 138 Conn. 385, 388-89, 85 A.2d 246 (1951); and " [w]here contract language is clear and unambiguous, the question of contractual intent is a question of law for the court . . ." LMK Enters., Inc. v. Sun Oil Co., 86 Conn.App. 302, 307, 860 A.2d 1229 (2004).
By way of proof that the defendant did not have control over the area where the plaintiff allegedly fell, the defendant submitted the lease between the defendant and 470 Bank Street, LLC. There is no dispute between the parties that the premises leased by the defendant from 470 Bank Street, LLC, included the commercial space located on the second floor of the building. Section 1 of the lease provides: " Landlord hereby leases to Tenant and Tenant hereby hires from Landlord, 9, 030 rentable square feet of space located on the 2nd floor of the building known as Columbus Corner (hereinafter referred to as, the " Building"), 470 Bank Street, New London Connecticut, as indicated on the plan attached hereto as Exhibit A (hereinafter referred to as the " premises, " " Premises, " or the " Demised Premises")." It is clear from this language and the attached blueprint to the lease, that this area only included the enclosed, commercial space located on the second floor of the building and did not by the terms of this section include the breezeway, landing, or stairway in question.
Further, Section 16 of the lease provides, in relevant part: " The premises include the right of ingress and egress thereto and therefrom; however, the Landlord reserves the right to make changes and alterations to the building, fixtures, equipment, thereof, in the street entrances, doors, halls, corridors, lobbies, passages, elevators, escalators, stairways, toilets and other parts thereof which Landlord may deem necessary or desirable. Neither this Lease nor any use by the Tenant of the building or any passage, door, tunnel, concourse, plaza or any other area connecting the garages or other building with the building in which the premises are located, shall give the Tenant any right or easement of such use and the use thereof may, without notice to the Tenant, be regulated or discontinued at any time and from time to time by the Landlord without liability of any kind to the Tenant and without affecting the obligations of the Tenant under this Lease."
Simply because the lease labels Section 16, " Appurtenances, " and gives the defendant tenant a right of ingress and egress from his leasehold, does not confer control upon the defendant. To the contrary, the issue of control over the area which " the right of ingress and egress" covers is addressed in Section 16, in which " the Landlord reserves the right to make changes and alterations to the building, fixtures and equipment, thereof, in the street entrances, doors, halls, corridors, lobbies, passages, elevators, escalators, stairways, toilets and other parts thereof which Landlord may deem necessary or desirable." This portion of the provision shows that by express obligation the landlord retained control over the ingress/egress area and that defendant did not have control and therefore is not liable for its maintenance.
Further, as the parties have contended in their arguments, and because the lease fails to explicitly state what a right to ingress and egress means, the stairway landing in question may also be considered a common area. However, this nomenclature does not explicitly confer control on either party by itself. The lease itself, answers the question of control over common areas where in Section 9, the lease provides, in relevant part: " Landlord shall maintain and repair, the common areas of the building, including all structural portions and the exterior . . ." Again, by express provision, the Landlord has obligated itself to the repair and maintenance of the area in question and therefore, retains control over the stairway. Indeed, in the same section, there is an express provision that the tenant will not take it upon himself to make any repairs to the common areas. This shows an express obligation and intent, contracted by both parties, that the landlord will retain control over common areas. The language of the lease in terms of control is unambiguous and confers on the landlord complete control over the area in question, regardless of its name.
The fact that the lease calls for the defendant, in Section 3, to contribute a pro rata percentage of all Operating Expenses, defined as expenses incurred as part of repair and maintenance of the building, does not by itself give rise to control. This section requires the defendant tenant to contribute a pro rata percentage to maintenance and repair of the entire building . It would be too much of a stretch for a pro rata share of overall maintenance costs of the common area charges to interpret those charges as making this tenant responsible for any liability arising from the common area. The Connecticut Supreme Court has clearly held that express retention of control is paramount over any of the other circumstances. Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (2012) (where the landlord retained the right to inspect and repair the interior of the demised premises, this was enough to prove the landlord undertook to make repairs and the defendant was not liable); Esposito v. Toys " R" Us, Superior Court, judicial district of Fairfield, Docket No. 382699, (Levin, J., December 26, 1997) (where the lease imposed an obligation on defendant to obtain insurance was not sufficient to rise to the level of control necessary for liability). In the present case, the court finds that the express retention in Sections 9 and 16 of the lease gives the landlord exclusive control over the area in question and is predominant over any other circumstances created by the lease, including the pro rata payment of operating expenses for repair and maintenance.
However, a finding of control is not the end of this court's inquiry. A tenant, in Connecticut, may nevertheless still be held liable as control does not absolve a defendant tenant from liability where the tenant opens its leased premises to business invitees. Under these circumstances, the defendant may nonetheless still have a duty to keep the space he leases reasonably safe, regardless of who retains or has control. Ford v. Hotel & Restaurant Employees & Bartenders Union, 155 Conn. 24, 35, 229 A.2d 346 (1967) (holding " an invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect the possessor will exercise reasonable care to make the land [reasonably] safe for his entry, or for his use for the purposes of the invitation"); Tarzia v. Great Atlantic and Pacific Tea Co., 52 Conn.App. 136, 149, 727 A.2d 219 (1999) (holding " [a]s a matter of law, [the defendant tenant] owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonably safe condition").
This court recognizes that there is contrary authority in other jurisdictions, as well as in comment a to Restatement (Second) Torts § 360. Section 360 provides, in relevant part: " A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe." Comment a provides: " The rule stated in this Section applies to subject the lessor to liability to third persons entering the land, irrespective of whether the lessor knows or does not know of the dangerous condition. The lessee may, for example, know the common entrance to the apartment or office which he has leased has become dangerous for use because of the lessor's failure to maintain it in safe condition. His knowledge may subject him to liability even to his own licensees, if he fails to warn them of the danger. It will not, however, relieve the lessor of liability for his negligence in permitting the entrance to become dangerous." Additionally, in other jurisdictions, courts have held that a lessee can be held simultaneously liable for dangerous conditions that business invitees encounter on a common area, even where the lessor has retained exclusive control over maintaining the area. Jackson v. K-Mart Corp., 182 N.J.Super. 645, 442 A.2d 1087, 1090-91 (N.J.Super., 1981). However, as noted in Esposito v. Toys " R" Us, supra, Superior Court, Docket No. 382699, " [n]either the portion of comment a to Restatement (Second) Torts § 360, nor the ingress/egress rule of Jackson v. K-Mart Corp . has been adopted in Connecticut."
However, Connecticut courts have generally held that for a defendant tenant to be held liable simultaneously with the landlord, that the area be a part of the leased premises. Ford v. Hotel & Restaurant Employees & Bartenders Union, supra, 155 Conn. 24; Tarzia v. Great Atlantic and Pacific Tea Co., supra, 52 Conn.App. 136; Bullard v. Dots, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-04-0182761-S, (Matasavage, J., February 28, 2005).
In Ford, the defendant tenant leased a portion of the premises of an armory to hold a dance. Ford v. Hotel & Restaurant Employees & Bartenders Union, supra, 155 Conn. 26. The armory consisted of multiple buildings used primarily for military purposes. Id. The dance was ticketed and was held in the drill shed which was entered by going through the second floor of the main house on the property. Id. In addition to the entrance and exit through the main house, there was a separate exit through a stairwell in the back corner of the drill shed. Id. The entrance through the main house, the stairs at the back of the shed, and the parking lot were not part of the leased premises, although the dance attendees were allowed to use them. Id. The plaintiff ultimately fell down that stairwell and injured himself after attending the dance. Id. The court held that the defendant tenant had a duty to foreseeable plaintiffs to reasonably inspect and make certain that there were no actual or latent defects in the leased premises; repair and warn foreseeable plaintiffs against any such defects; and make the leased property reasonably safe. Id. However, the court held that this was only applicable to the leased premises, which only included the door which led to the stairway and not the stairway itself. Id. The court held that the defendant tenant should have taken proper precautions to prevent its invitees from using the door. Id. The court found that the failure to do so was negligent and that the defendant tenant could be held liable for its failure to secure the door, which was the proximate cause of the plaintiff's injuries. Id. In Tarzia, the defendant tenant leased a building and a parking lot for the purpose of running a grocery store. Tarzia v. Great Atlantic and Pacific Tea Co., supra, 52 Conn.App. 137. The plaintiff in Tarzia fell on a trash bag in the parking lot. Id. The defendant moved for summary judgment on the ground that based on the terms of the lease it did not have control over the parking lot because the landlord retained control to maintain and repair, as well as remove debris from the parking lot. Id., 146. However, the court ultimately found that while the landlord may have had control, this did not absolve the defendant tenant of its duty to its customers to keep the grounds it possessed reasonably safe. Id. The court held that because the defendant tenant leased the parking lot, as well as the building, " [t]he possessor of premises who has invited persons to those premises for a business purpose cannot escape liability for a claimed breach of its duty to exercise reasonable care to keep the premises in a safe condition by hiring another to maintain the premises in a safe condition." Id., 148. However, it is clear an important factor in determining this outcome was possession by the defendant of the parking lot as part of the leased premises, holding that " [t]he defendant owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonably safe condition." (Emphasis added.) See id.
Additionally, in Bullard v. Dots, LLC, supra, Superior Court, Docket No. CV-040182761-S, the plaintiff fell on a sidewalk in a shopping center. The court found that the area in question was a common area and not a part of the leased premises, which was exclusively controlled by the landlord, and that these facts would not allow the court to subject the defendant tenant to liability under Tarzia. Id. The court in Bullard, analyzing Tarzia, stated that " [t]he idea behind Tarzia is that a lessee cannot contract away the duty to keep its leased premises in safe condition." (Emphasis added.) Id. The court in Bullard ultimately granted the defendant tenant's motion for summary judgment regarding control and liability, finding that a common area solely within the control of the landlord was not within the defendant tenant's responsibility and the tenant was, therefore, not liable.
The holdings in Tarzia, Ford, and Bullard show Connecticut courts use control as determinative of liability, but will still find liability exists against a defendant tenant, regardless of control, where he has leased the premises, and by the terms of the lease has notice that he also has a duty to keep the leased premises in good repair for use by their business invitees. Ford v. Hotel & Restaurant Employees & Bartenders Union, supra, 155 Conn. 24; Tarzia v. Great Atlantic and Pacific Tea Co., supra, 52 Conn.App. 136; Bullard v. Dots, LLC, supra, Superior Court, Docket No. CV-04-0182761-S, .
This court recognizes the holding in Manley v. Connecticut Commercial Investors, LLC, Superior Court, judicial district of Milford, Docket No. CV-08-5005061 (Tyma, J., June 26, 2009) [48 Conn.L.Rptr. 39, ], as arguably contrary to this principle, but finds it to be distinguishable to the case at hand. Id. In Manley, the plaintiff fell down in a CVS parking lot. Id. The defendant tenant, CVS moved for summary judgment on the ground that their landlord controlled and maintained the parking lot. Id. While the court in Manley found that the parking lot was not part of the leased premises, there, the court did find the lease expressly leased " [t]he premises [ ] together with the right in [CVS] . . . in connection with their business . . . to use . . . the areas . . . for parking." Id. The court found that " [f]or purposes of determining whether CVS owed a duty of care to the plaintiff, its business invitee, under the circumstances of this case, there is no distinction between the defendant leasing the parking lot to CVS for use in its business, and permitting CVS to use the parking area around the store in furtherance of its business." Id. The plaintiff asks the court here to use this case to find that the defendant tenant should be held liable for the area in question because they used it for their business.
The Manley case is not necessarily binding on the court's decision and also is distinguishable from the case at hand. This is because the lease in Manley was explicit and express in laying out what area the defendant tenant had the right to use in connection with its business and it is clear from the lease the exact area they could use in conjunction with the leased premises. Manley v. Connecticut Commercial Investors, LLC, supra Superior Court, Docket No. CV-08-5005061, . The court found a duty because the lease put the defendant tenant on notice of the area which he had a duty to monitor and repair for its customer's use. Id. The court in Manley relied on the finding in Tarzia in coming to this conclusion. Id. However, part of the ruling in Tarzia, which was relied on in Manley, was that a defendant would be held responsible where the defendant tenant had reason to know he was also responsible for a particular area by the terms of the lease; and that it was clear a defendant tenant could potentially be held liable for disrepair of that area. Tarzia v. Great Atlantic Tea Co., supra, 52 Conn.App. 136. In the present case, because the lease is ambiguous as to what the " right of ingress and egress" includes, the lease is insufficient to put the defendant tenant on notice that he had duties, pursuant to the holding in Manley, of monitoring and repairing the stairway. Although one might assume the right of ingress and egress as dictated in the lease means the stairway and landing, it is not clear by the precise terms of the lease and it is not for this court to make this type of assumption about the intent of the parties, given the explicit language of the lease that the landlord had total control over the common areas.
Liability, therefore, turns on whether the area in question was a common area or part of the defendant's leasehold. This court recognizes the arguably conflicting language of Section 16 which provides, in relevant part: " The premises include the right of ingress and egress thereto and therefrom . . ." However, the lease fails to define explicitly what " the right of ingress and egress" includes. The plaintiff has argued in its objection to summary judgment that the stairway and landing in question on which the plaintiff fell was one of the only means of ingress and egress to and from the defendant's leased premises on the second floor of the building. However, this area is an open air staircase accessible to the landlord, to all the tenants, and to all licensees and invitees on the property. The stairway and landing cannot be said to be included as part of the leased premises, either explicitly or unambiguously, regardless of whether the tenant and its invitees were, in practice, the only ones who used them. The court also leans on other evidence submitted by the defendant to support its finding.
The defendant in its memorandum in support of its motion for summary judgment calls the area where the plaintiff allegedly fell a common area. Defendant's Memorandum of Support, pg. 3. In support of this claim, the defendant submits the deposition of Christopher Lage, the property manager of the building, who states definitively that this area is a common area not in the control of the defendant. Deposition of Christopher Lage, pg. 166-67. Further, Mr. Lage in his deposition stated that the defendant tenant was expressly prohibited from altering or fixing the area in question by the terms of their lease with the landlord. Id. Also, the defendant submits the affidavits of Terrence Weymouth, the president and founder of Ridley-Lowell, and Tara O'Houle, the manager of Ridley-Lowell, who state that this area is a common area not within the defendant's control. Affidavit of Terrence Weymouth; Affidavit of Tara O'Houle. Through this evidence, the defendant has met its burden of proving that this area was a common area and not part of the leased premises. The defendant has also met its burden of showing that this was within the exclusive control of the landlord. The burden therefore shifted to the plaintiff to prove that this was not a common area or not in the sole control of the landlord.
The plaintiff, however, in its objection, along with its evidence submitted, did not meet the burden of rebutting the defendant's position that this was not a common area. The plaintiff argues that the area was in exclusive use of the defendant and therefore this was sufficient to show defendant had control. However, as determined, supra, by Connecticut law, the area must have been part of the leased premises to put the defendant on notice or within the defendant's control for a duty to maintian. The plaintiff in support of its proposition submitted the same deposition of Christopher Lage calling the area a common area. Deposition of Christopher Lage, pg. 166-67. The plaintiff also submitted a deposition of Tara O'Houle, but this merely stated that the school occupied the second floor. Deposition of Tara O'Houle, pg. 125. Further, the deposition of Tara O'Houle, submitted by the plaintiff, includes a statement that at the time the lease was made, the school did not occupy the entirety of the second floor, and only came into possession of the entire second floor in 2012. Deposition of Tara O'Houle, pg. 125. This evidence is not sufficient to rebut that this area was not a common area.
Since the area is not part of the leased premises and it was within the exclusive control of the landlord, the defendant could not be found liable and is, therefore, entitled to summary judgment. Accordingly, the defendant's motion for summary judgment is granted.