Summary
finding that commercial tenant owed no duty to plaintiff who fell on a greasy exterior stairway because tenant was not responsible for the stairway under provisions of the lease
Summary of this case from Smith v. New York Enterprise America, Inc.Opinion
August 30, 2001.
Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about December 7, 1999, which, in an action for personal injuries sustained when plaintiff fell down an allegedly greasy exterior basement stairway used by defendant-respondent commercial tenant and the building's owner and three other commercial tenants, insofar as appealed from, granted defendant-respondent's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs, without prejudice to plaintiff's moving to replead.
David M. Schwarz Michael T. Etzrodt, for plaintiff-appellant.
Jeffrey M. Burkhoff, for defendant-respondent.
Before: Rosenberger, J.P., Nardelli, Tom, Andrias, Ellerin, JJ.
The complaint was properly dismissed as against defendant-respondent in view of its lease, which did not include the subject stairway as part of the demised premises or otherwise make respondent responsible for its maintenance, and in the absence of an allegation that respondent created the greasy condition (see, Millman v. Citibank, N.A., 216 A.D.2d 278). We affirm, however, without prejudice to plaintiff's moving, if he is so advised, to replead based on factual references in the papers that could give rise to a cause of action charging defendant with creation of the condition.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.