- March 20, 2018
Rutherford & Christie, LLP, New York, NY (Lauren E.
Bryant and David S. Rutherford of counsel), for appellant.
Berger Koshel & Goldberg, P.C., Brooklyn, NY (Marc A.
Novick of counsel), for respondent.
C. DILLON, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE BETSY
DECISION & ORDER
action to recover damages for personal injuries, the
defendant appeals from an order of the Supreme Court, Kings
County (Martin M. Solomon, J.), dated May 5, 2016. The order
denied the defendant's motion for summary judgment
dismissing the complaint.
that the order is affirmed, with costs.
plaintiff allegedly sustained personal injuries when, after
entering a building through an exterior door, she slipped and
fell on water located on an interior staircase. The plaintiff
commenced this action against the defendant, the owner of the
building, to recover damages for personal injuries. The
plaintiff asserted that the defendant was negligent in
failing to maintain and repair the exterior door, doorway,
and stairwell, which were allegedly defective. The plaintiff
claimed that the allegedly defective conditions in the
exterior door, doorway, and stairwell caused the staircase to
become slippery by, among other things, allowing rainwater to
enter through the doorway and collect on the stairs.
the completion of discovery, the defendant moved for summary
judgment dismissing the complaint, arguing that as an
out-of-possession landlord, it was not responsible for the
conditions that allegedly caused the accident. In support of
its motion, the defendant relied upon its lease with the
nonparty tenant. The lease contained a provision obligating
the defendant to maintain the interior and exterior public
portions of the building, and required the nonparty tenant to
make nonstructural repairs. The lease also provided that the
defendant reserved the right to re-enter the premises for
purposes of, inter alia, inspecting the premises and making
repairs. In opposition to the defendant's motion, the
plaintiff contended, among other things, that the lease
required the defendant to maintain and repair the structural
elements, which included the subject exterior door, doorway,
and stairwell. The Supreme Court denied the defendant's
motion. The defendant appeals.
out-of-possession landlord can be held liable for injuries
that occur on its premises only if the landlord has retained
control over the premises and if the landlord is
contractually or statutorily obligated to repair or maintain
the premises or has assumed a duty to repair or maintain the
premises by virtue of a course of conduct''
(Duggan v Cronos Enters., Inc., 133 A.D.3d 564, 564;
see Davidson v Steel Equities, 138 A.D.3d 911, 912).
"Even if a defendant is considered an out-of-possession
landlord who assumed the obligation to make repairs to its
property, it cannot be held liable for injuries caused by a
defective condition on the property unless it either created
the condition or had actual or constructive notice of
it" (Davidson v Steel Equities, 138 A.D.3d at
the defendant failed to demonstrate, prima facie, that it was
an out-of-possession landlord that did not have a contractual
duty under the lease to maintain the subject exterior door,
doorway, and stairwell, or to repair the alleged defects
therein that caused the plaintiffs accident (see id.;
Quituizaca v Tucchiarone, 115 A.D.3d 924, 925-926;
Lee v Second Ave. Vil. Partners, LLC, 100 A.D.3d
601, 602; Lalicata v 39-15 Skillman Realty Co., LLC,
63 A.D.3d 889). Moreover, the defendant failed to
demonstrate, prima facie, that it did not create the
allegedly defective conditions, and that it did not have
actual or constructive notice of them (see Davidson v
Steel Equities, 138 A.D.3d at 912; Nelson v
Cunningham Assoc., L.P., 77 A.D.3d 638, 639).
the defendant failed to establish its prima facie entitlement
to judgment as a matter of law, we need not review the
sufficiency of the plaintiffs opposition papers (see
Winegrad v New York Univ. Med. Ctr, 64 N.Y.2d 851,
we agree with the Supreme Court's determination to deny
the defendant's motion for summary ...