New York Supreme and/or Appellate Courts Appellate Division, First Department
February 14, 2012
601 WEST 162 ASSOCIATES, L.P.,
LA VILLA FOOD CENTER, ET AL.,
Brignoni v 601 W. 162 Assoc., L.P.
Decided on February 14, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered January 12, 2011, which, inter alia, granted the motion of defendant 601 West 162 Associates, L.P. (601) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff was injured when a trapdoor collapsed underneath her causing her to fall into the basement of the premises. 601, an out-of-possession landlord, failed to establish as a matter of law that the defective condition that allegedly caused the entire trapdoor, including its hinges, to collapse under plaintiff was not a structural defect (see e.g. Bernardo v 444 Rte. 111, LLC, 83 AD3d 753, 754 ). Contrary to 601's contention, whether the trapdoor might have opened and closed properly is not dispositive of whether it was structurally defective (cf. Malloy v Friedland, 77 AD3d 583 ; Baez v Barnard Coll., 71 AD3d 585 ).
601's argument that it did not have a right to re-enter the premises to inspect or make repairs, is belied by the plain language of the lease. Thus, as an out-of-possession landlord with a right of re-entry, it may be liable for plaintiff's injuries if 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 N.Y., 81 AD3d 507 , quoting Quinones v 27 Third City King Rest., 198 AD2d 23, 24 ). Here, an issue of fact exists as to whether 601 had constructive notice of the defective condition. The testimony of 601's property manager and superintendent testimony showed they were both aware of the trapdoor, and that they frequented the bodega. Moreover, there is evidence that the hinges on the trapdoor were readily visible and that they appeared old and rusty (see Serna v 898 Corp., AD3d , 2011 NY Slip Op 09202 [1st Dept 2011]).
The lease provision that defendant's contractual obligation to make structural repairs is not triggered unless the tenant notifies it in writing of the need for such repairs, is unenforceable as an attempt by 601 to relieve itself of responsibility for damages caused by its own negligence (see General Obligations Law § 5-321; Ben Lee Distribs., Inc. v Halstead Harrison Partnership, 72 AD3d 715 ). In any event, the provision permitting re-entry imposes a separate obligation to repair structural defects in conformance with statutory safety provisions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:: FEBRUARY 14, 2012
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