Opinion
March 8, 1996
Appeal from the Supreme Court, Kings County, Aronin, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiff fractured her left ankle when she slipped on a wet spot in a bar owned and operated by CE Corporation, which leased the premises from 1498 Third Realty Corporation (defendant). Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Where, as here, an owner out of possession retains the right to reenter and make repairs to the demised property, the owner is liable for injuries arising from a structural or design defect in the property ( see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566; Sharaby v Gamel, 140 A.D.2d 319). Plaintiff's injury, however, was not caused by a structural defect in the property, but instead was caused by the tenant's alleged failure to perform general maintenance ( see, Aprea v Carol Mgt. Corp., 190 A.D.2d 838; Manning v New York Tel. Co., 157 A.D.2d 264; see also, Levy v Daitz, 196 A.D.2d 454). Plaintiff's remaining contention regarding Real Property Law § 231 (2) is raised for the first time on appeal and, thus, is unpreserved for review ( see, Szigyarto v Szigyarto, 64 N.Y.2d 275, 280; Marshall v New York City Health Hosps. Corp., 186 A.D.2d 542).