Cox v Cove 5, LLC

Holding The court affirmed the dismissal of the complaint against the tenant, Dublin Deck, Inc., as it established it did not own, occupy, or control the parking lot. However, the court reversed the dismissal against the property owners, Cove 5, LLC, and Leeward 5, Inc., because they failed to establish that the railroad tie was an open and obvious condition that was not inherently dangerous.

The court’s words

Cove and Leeward failed to establish, prima facie, that the presence of the railroad tie at issue was open and obvious and not inherently dangerous

2026 NY Slip Op 05160, at the official text

According to the plaintiff, the accident occurred late at night, the parking lot was full, and it was too dark to notice the presence of the railroad tie at issue

2026 NY Slip Op 05160, at the official text

Since Cove and Leeward failed to meet their initial burden as the movants, the burden never shifted to the plaintiff to raise a triable issue of fact

2026 NY Slip Op 05160, at the official text