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Ana Oviedo v. Summer Management Co.

New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 23, 2011

ANA OVIEDO,
PLAINTIFF-APPELLANT- CROSS-RESPONDENT,
v.
SUMMER MANAGEMENT CO., LLC AND MILBROOK PROPERTIES, LTD.,
DEFENDANTS-RESPONDENTS- CROSS-APPELLANTS,
AND
HILLSIDE DELI GROCERY & TOBACCO SHOP AND ALI ALSAYDI,
DEFENDANTS.

Per curiam.

Oviedo v Summer Mgt. Co., LLC

Decided on December 23, 2011

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: Lowe, III, P.J., Shulman, JJ

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated May 12, 2010, which granted defendants-respondents' motion for leave to renew and reargue a prior order (same court and Judge), dated November 20, 2009, denying their motion for summary judgment dismissing the complaint, and, upon reconsideration, granted defendants' motion for summary judgment. Defendants cross-appeal from the aforesaid order of November 20, 2009.

Order (Debra Rose Samuels, J.), dated May 12, 2010, affirmed, with $10 costs. Appeal from order (same court and Judge), dated November 20, 2009, dismissed, without costs, as academic.

An out-of-possession landlord with a right of re-entry may be held liable where it "has constructive notice of a significant structural or design defect in violation of a specific statutory safety provision'" (Heim v Trustees of Columbia Univ. in the City of NY, 81 AD3d 507 [2011], quoting Quinones v 27 Third City King Rest., 198 AD2d 23, 24 [1993]). Here, defendants established their prima facie entitlement to summary judgment by showing that the leaking air-conditioning unit that allegedly caused plaintiff to slip and fall did not constitute such a defect or violate a specific statutory provision (see Devlin v Blaggards III Rest. Corp., 80 AD3d 497 [2011], lv denied 16 NY3d 713 [2011]; Reyes v Morton Williams Associated Supermarkets, Inc., 50 AD3d 496, 498 [2008]). Nor were defendants responsible under the governing lease for ordinary maintenance and repairs of the premises (see Morrone v Chelnik Parking Corp., 268 AD2d 268, 269-270 [2000]; Velazquez v Tyler Graphics, 214 AD2d 489 [1999]).

In opposition, plaintiff failed to raise a triable issue of fact sufficient to withstand summary judgment. None of the Administrative Code provisions relied upon by her is applicable to the facts at bar (see Velazquez v Tyler Graphics, Ltd., 214 AD2d 489, 490 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 23, 2011

20111223

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