Opinion
92 Index No. 156977/18 Case No. 2022-02199
04-25-2023
Michelle PADILLA, Plaintiff–Respondent–Appellant, v. HOLROD ASSOCIATES LLC, Defendant–Appellant–Respondent.
Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellant-respondent. Kenneth J. Gorman, New York, for respondent-appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas P. Hurzeler of counsel), for appellant-respondent.
Kenneth J. Gorman, New York, for respondent-appellant.
Kapnick, J.P., Kern, Friedman, Gesmer, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 4, 2022, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment on liability, unanimously modified, on the law, to grant defendant's motion for summary judgment dismissing the complaint and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Defendant's motion for summary judgment should have been granted. "An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it ‘(1) is contractually obligated to make repairs or maintain the premises or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision’ " ( DeJesus v. Tavares, 140 A.D.3d 433, 433, 33 N.Y.S.3d 47 [1st Dept. 2016] quoting Vasquez v. The Rector, 40 A.D.3d 265, 266, 835 N.Y.S.2d 159 [1st Dept. 2007] ). Here, defendant established that it was an out of possession landlord with no contractual obligation to make repairs or maintain the restaurant premises. Pursuant to Paragraph 4 of the lease agreement, all non-structural repairs to the premises were to be made by the tenant restaurant at its sole cost and expense. Moreover, the cracked step at issue was not a significant structural or design defect that is contrary to a specific statutory safety provision (see Deebs v. Rich–Mar Realty Assoc., 248 A.D.2d 185, 185–186, 670 N.Y.S.2d 16 [1st Dept. 1998] ; Chery v. Exotic Realty, Inc., 34 A.D.3d 412, 414, 824 N.Y.S.2d 364 [2d Dept. 2006] ).
In sponse, plaintiff failed to raise a triable issue of fact sufficient to defeat defendant's motion. Plaintiff's assertion that there is an issue of fact as to whether defendant had actual notice of the cracked step on which plaintiff fell is without merit. An out of possession landlord may not be held liable even if it had notice of the defective condition prior to the accident (see Marie D. v. Roman Catholic Church of the Sacred Heart, 161 A.D.3d 448, 76 N.Y.S.3d 535 [1st Dept. 2018] ; Devlin v. Blaggards III Rest. Corp., 80 A.D.3d 497, 498, 916 N.Y.S.2d 580 [1st Dept. 2011], lv denied 16 N.Y.3d 713, 2011 WL 1755603 [2011] ).