Opinion
November 20, 1961
In a negligence action for damages for personal injuries sustained by plaintiffs as a result of their fall upon a defective wooden stairway leading to the basement of a store in a building, the upper part of which was used as a multiple dwelling, plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County, entered March 15, 1961, as dismissed their complaint against the building owner or landlord, defendant Woolsey Holding Corp., at the close of plaintiffs' case, during a jury trial. The store and basement were occupied by a lessee, defendant Mariano, who defaulted, and against whom a default judgment was entered in favor of the plaintiffs. While at the trial the action was severed against such defaulting defendant, the judgment as entered fails to make any such direction. Judgment, insofar as appealed from, reversed and a new trial granted as against defendant Woolsey Holding Corp., with costs to abide the event, and action severed as against said defendant. In our opinion, the lease provision reserving to defendant Woolsey Holding Corp., the landlord, the right to enter the demised premises, examine them, and make any repairs it deemed necessary or desirable, together with the evidence of actual prior repairs made by the landlord, raises a jury question as to whether the landlord reserved such control as would render it liable for failure to correct the alleged dangerous condition ( Scudero v. Campbell, 288 N.Y. 328; De Clara v. Barber S.S. Lines, 309 N.Y. 620; Boreyko v. Bay Ridge Sav. Bank, 274 App. Div. 1060; Reische v. Montgomery, 273 App. Div. 824; Allen v. Watson, 275 App. Div. 1046). We also believe that the evidence that the wooden stairway was "rotten" before and at the time of the accident, was sufficient to raise a jury question as to said defendant's constructive notice of the defective condition (cf. Scudero v. Campbell, supra). Beldock, Acting P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.