Avoiding Trial for Damage Dispute with Owner

June 15, 2017
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Q: A provision in my lease for space in a retail center specifies that I must fix any damage to the elevator that I use as part of my business. The owner recently discovered that the equipment has been damaged, and it sent me a notice to cure. However, I think the damage occurred before I moved into the space. I’m asking for a judgment in my favor without a trial. The owner wants a trial. What are the key requirements the owner would have to meet?

A: The owner would have to produce evidence demonstrating the existence of a disputed material issue of fact sufficient to require a trial. Here, the disputed issue is when the damage took place. The owner is alleging that it happened after you had control of the elevator, while you’re alleging that the damage was already present when you moved into the space. Any evidence that the owner could provide refuting your time frame for the damage would help the owner’s claim.

For the details of a New York case on point, see “Meeting Requirements to Bring Claim to Trial,” available to subscribers here