Opinion
2014-03-20
Sherritta JOYNER, Plaintiff–Appellant, v. MINGLES CAFÉ, INC. et al., Defendants, B.P.R. 4000, LLC, Defendant–Respondent.
Bailly and McMillan, LLP, White Plains (Keith J. McMillan of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Bailly and McMillan, LLP, White Plains (Keith J. McMillan of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
TOM, J.P., FRIEDMAN, MANZANET–DANIELS, GISCHE, CLARK, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 14, 2013, which, insofar as appealed from as limited by the briefs, granted the motion of defendant B.P.R. 4000, LLC (BPR) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Defendant BPR, the owner of the subject premises, established its entitlement to judgment as a matter of law in this action where plaintiff allegedly tripped and fell while walking to the bathroom in the nightclub operated by defendants Mingles Café, Inc. and Mingles, Inc. BPR submitted its lease with Mingles showing that it had no contractual duty to maintain or repair the demised premises, but retained only a limited right to reenter and repair where tenant failed to maintain the premises, and by demonstrating that the cracked floor tile and alleged inadequate lighting were not significant structural or design defects which violated specific statutory safety provisions ( see Kittay v. Moskowitz, 95 A.D.3d 451, 944 N.Y.S.2d 497 [1st Dept.2012], lv. denied20 N.Y.3d 859, 2013 WL 518556 [2013];Bethea v. Weston House Hous. Dev. Fund Co., Inc., 70 A.D.3d 470, 471, 895 N.Y.S.2d 364 [1st Dept.2010]; Uhlich v. Canada Dry Bottling Co. of N.Y., 305 A.D.2d 107, 108, 758 N.Y.S.2d 650 [1st Dept.2003]; Couluris v. Harbor Boat Realty, Inc., 31 A.D.3d 686, 820 N.Y.S.2d 282 [2d Dept.2006] ).
In opposition, plaintiff failed to raise a triable issue of fact. The record shows that she submitted only alleged violations of general safety provisions, or lighting codes ( see e.g. Kittay at 452, 944 N.Y.S.2d 497).
We have considered plaintiff's remaining arguments and find them unavailing.