Opinion
1041
May 6, 2003.
Order, Supreme Court, New York County (Diane Lebedeff, J.), entered July 16, 2002, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Donald T. Kiley, for plaintiffs-respondents.
Mary Ellen O'Brien, for defendant-appellant.
Before: Buckley, P.J., Nardelli, Mazzarelli, Sullivan, Gonzalez, JJ.
While defendant's motion for summary judgment, its second, was not procedurally inappropriate, having been premised in part upon new evidence obtained in discovery since its first summary judgment motion several years before (cf. Pub. Serv. Mut. Ins. Co. v. Windsor Place Corp., 238 A.D.2d 142, 143), the motion was nonetheless properly denied. Plaintiff sues to recover for injuries allegedly sustained when a handrail gave way and he fell down a staircase in the building at which he was employed. The building was managed by defendant. Defendant maintains that its control over the premises pursuant to its management contract with the building owner was insufficient to support a finding that it had a duty to maintain the premises for third parties. However, the management contract, affording defendant broad authority to maintain the premises and make ordinary repairs costing less than $1,000, and to make emergency repairs, regardless of cost, without prior approval of the owner, was sufficient to raise a triable issue as to whether it was under a duty to a building employee, such as plaintiff, to repair a defective staircase handrail (see Tushaj v. 322 Elm Mgt. Assocs., 293 A.D.2d 44).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.