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November 14, 1969

Robert TORRES, Plaintiff,
UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Alvin R. FULLER and Jane Fuller, Third-Party Defendants

The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

 MISHLER, Chief Judge.

 This is an action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), based on a claim of negligence on the part of the Government in failing to inspect and/or maintain a stairway at premises 123-20 Grayson Street, Springfield Gardens, in the Borough of Queens, City and State of New York. The case was tried to the court without a jury.

 On May 19, 1967, plaintiff was in the employ of Canarsie Outlet Sales Corp. He arrived at 123-20 Grayson Street with a truckload of furniture, consisting of a dining room set, a living room set (sofa and two upholstered chairs) and two bunk beds with springs and mattresses for a customer by the name of Harris. He was directed to deliver the furniture to the basement of the premises. He stepped on the third step down the stairway. The tread was dislodged and fell away. The plaintiff was precipitated to the floor beneath the stairway and sustained injury.

 The Government acquired title to the premises on March 25, 1966 through a Referee's deed in a state foreclosure action. At that time, the prior owner, a Mr. Cooper, occupied the first floor and basement. The second floor was rented to a tenant. The premises were occupied as a two family house. An area of the basement contained a sink and a refrigerator.

 The Government removed Mr. Cooper from the premises on or about October 3, 1966. The premises became completely vacant. The Government, at that time, made a complete inspection of the building, including the stairway. The stairway inspection consisted of a visual examination and the use of the stairway by walking up and down the steps to determine if they were firm. The inspection of the stairway was properly performed and revealed no defects. The Government's agent had occasion to examine the stairway a number of times while the house was vacant and such further inspections revealed no defects. The last such examination occurred immediately prior to the execution of a contract of sale on December 29, 1966.

 The premises remained vacant until December 29, 1966. On that day, the Government, by the Administrator of Veterans' Affairs, entered into an installment contract of sale with third-party defendants, Alvin R. Fuller and Jane Fuller. The purchase price was $22,500, payable $750.00 upon execution and delivery of the agreement and the balance of $21,750 in constant monthly installments of principal and interest in the sum of $130.42 each "until such principal and interest shall have been fully paid." The Buyer agreed to pay the expenses usually paid by an owner of premises, i.e., taxes, assessments, water rates, fire insurance premiums. Under the terms of the contract, the Buyer agreed to keep the property in good repair *fn1" and the Seller reserved the right to inspect the premises "for the purpose of protecting Seller's right, title and interest in and to the property." *fn2"

 Under the contract, the Buyer is entitled to a deed to the property upon payment of the sum of $16,875.00, the difference between the sum paid and the purchase price to be paid by delivery of a purchase money mortgage. Until delivery of the deed, the relationship established by the terms of the contract was that of landlord and tenant, the Buyer occupying the premises as a tenant from month to month. *fn3"

 At the time of the execution of the contract, the premises were neither designed nor occupied as a three family house; nor did defendant intend that it should be so occupied. The certificate of occupancy permitted occupancy by two families. Thereafter, and in or about the first week in May, 1967, the Fullers rented the basement to one Mrs. Harris. About the same time, the Fullers installed a cooking stove in the basement for Mrs. Harris' use. The letting of the basement and the installation of the stove was done without the knowledge or consent of the defendant.

 Plaintiff offered proof through an expert as to the cause of the accident. He attributed it to the deterioration over the years of the adhesive used to join the treads of the stairway to the stringers and/or the decay of the wood of the treads and the stringers. The court finds that the plaintiff failed to prove that the defect claimed existed prior to December 29, 1966 *fn4" or that the defendant knew or in the exercise of reasonable care should have known of the defect prior to the date of the occurrence of the injury, i.e., May 19, 1967.

 A landlord is not liable at common law for injuries caused by a defective condition occurring after the letting of premises in the exclusive control of the tenant. 2B O.L. Warren, Negligence in the New York Courts, § 2.01 (3d ed. 1966). The Multiple Dwelling Law *fn5" (and its predecessor statute, the Tenement House Law) imposed a duty on the landlord to keep every part of the multiple dwelling in good repair. Altz v. Leiberson, 233 N.Y. 16, 134 N.E. 703 (1922).

 Section 4(7) of the Multiple Dwelling Law defines a multiple dwelling as "a dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other." The court finds that the premises, at the time of the execution of the contract of sale, i.e., December 29, 1966, was a two family residence. Thereafter, in or about the beginning of May, 1967, the Fullers converted the premises to a three family house. Feneis v. Lewin, 185 App.Div. 41, 172 N.Y.S. 821 (2d Dep't 1918), Eichorn v. Goodman, 22 Misc.2d 516, 188 N.Y.S.2d 710 (City Court, Long Beach).

 The liability imposed by Section 78 is not absolute. Fault must be shown. Actual or constructive notice of the defective condition must be shown. Klein v. United States, 339 F.2d 512, 516 (2d Cir. 1964), Century Indemnity Co. v. Arnold, 153 F.2d 531 (2d Cir. 1946), cert. denied, 328 U.S. 854, 66 S. Ct. 1346, 90 L. Ed. 1626, Ferrara v. Sheraton McAlpin Corp., 311 F.2d 294, 296 (2d Cir. 1962), Altz v. Leiberson, supra, Bonavita v. Economics Lab. Inc., 10 App.Div.2d 983, 202 N.Y.S.2d 413 (2d Dep't 1960).

 New York law is not clear on whether the landlord is relieved of the statutory liability imposed by section 78 upon leasing the entire premises to a tenant. 2B O.L. Warren, Negligence in ...

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