| Marino v A.G. Props. of Kingston, LLC |
| 2011 NY Slip Op 05165 [85 AD3d 1429] |
| June 16, 2011 |
| Appellate Division, Third Department |
| John Marino et al., Respondents-Appellants, v A.G. Properties ofKingston, LLC, et al., Defendants, and TechCity 52, LLC,Appellant-Respondent. |
—[*1] Melley Platania, P.L.L.C., Rhinebeck (Kevin J. Rumsey of counsel), forrespondents-appellants.
Kavanagh, J. Cross appeals from an order of the Supreme Court (Gilpatric, J.), enteredNovember 18, 2010 in Ulster County, which, among other things, denied a motion by defendantTechCity 52, LLC, for, among other things, summary judgment dismissing the complaint againstit.
Plaintiff John Marino and his wife, derivatively, commenced this action alleging that, in May2006, Marino injured his knee while ascending stairs inside a building leased by his employerfrom defendant TechCity 52, LLC (hereinafter defendant), the building's owner. Defendantmoved to dismiss plaintiffs' complaint contending that it failed to state a cause of action pursuantto CPLR 3211 (a) (7) and, in the alternative, for summary judgment dismissing the complaintpursuant to CPLR 3212. Plaintiffs cross-moved for summary judgment on the issue of liability.Supreme Court denied both motions, and these cross appeals ensued.
"While an out-of-possession landlord generally will not be responsible for dangerous [*2]conditions existing on leased premises, it is settled that [a] landlordmay be liable for failing to repair a dangerous condition, of which it has notice, on leasedpremises if the landlord assumes a duty to make repairs and reserves the right to enter in order toinspect or to make such repairs" (Oatesv Iacovelli, 80 AD3d 1059, 1060 [2011] [internal quotation marks and citationsomitted]; see Hart v O'Brien, 72AD3d 1257, 1258 [2010]; Sticklesv Fuller, 9 AD3d 599, 600 [2004]). Here, while defendant was, in fact, anout-of-possession landlord, the lease agreement gave it the right "at all reasonable times to enterthe . . . premises for the purpose of operating, maintaining, repairing or altering theBuilding, its systems and facilities," and to inspect the same. Further, under the lease, the tenantwas solely responsible for maintaining and repairing certain areas of the building—notincluding the stairs—while defendant retained responsibility for repairing certain portionsof the premises when notified by the tenant. Given defendant's rights and obligations under thelease, its motion for summary judgment was properly denied.
In their cross motion for summary judgment, plaintiffs contend that while defendant may nothave actually known of the defect in the staircase, it should have—given its duties andobligations under the lease—discovered this condition long before the accident occurredand repaired it prior to Marino's fall (see Oates v Iacovelli, 80 AD3d at 1060; see also Litwack v Plaza Realty Invs.,Inc., 11 NY3d 820, 821 [2008]; Chapman v Silber, 97 NY2d 9, 20 [2001]). Inthat regard, constructive notice of such a condition can be found where the "condition was visibleand apparent and existed for a sufficient period of time prior to the accident to permit [the]defendant[ ] to discover it and take corrective action" (Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [2008],quoting Boyko v Limowski, 223 AD2d 962, 964 [1996]; see Page v State of New York, 72AD3d 1456, 1460 [2010]). On that issue, plaintiffs presented testimony by an expert who,after inspecting the premises, concluded that the staircase and, in particular, the condition whichcaused Marino to fall had to have been present for a considerable period of time prior to theaccident. However, this inspection was performed more than three years after the accidentoccurred and record evidence does not exist, especially given the location and size of the allegeddefect, that would allow us to conclude that defendant, as a matter of law, had constructive noticeof its existence.
As for plaintiffs' contention that their cross motion for summary judgment should have beengranted because the defect in the stairs constituted a violation of the Building Code (see 9NYCRR 765.4 [a] [9]), we note that it has not been established that the condition or the allegedbuilding code violation was the sole proximate cause of this accident (see Sauer vMannino, 309 AD2d 1053, 1054 [2003]; see also Gonzalez v State of New York, 60 AD3d 1193, 1194-1195[2009], lv denied 13 NY3d 712 [2009]; see generally Avina v Verburg, 47 AD3d 1188, 1189[2008]).[FN*]As a result, plaintiffs' cross motion for summary judgment was properly denied.
Spain, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The accident report states thatMarino fell when walking up stairs and his "knee gave out." In his affidavit submitted in supportof plaintiffs' cross motion, Marino stated that his right foot twisted as he stepped on the edge ofthe stairs and, at that time, he noticed that a piece of concrete was missing.