| Kane v Port Auth. of N.Y. & N.J. |
| 2008 NY Slip Op 01920 [49 AD3d 503] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Joseph Kane et al., Respondents, v Port Authority of NewYork and New Jersey, Appellant. |
—[*1] Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn and Salvatore J.DeSantis of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Balter, J.), dated November 8, 2006, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Joseph Kane (hereinafter the plaintiff) fell and allegedly was injured whileretrieving boxes from an elevated storage area located on property owned by the defendant andrented to Urban Pathways, a not-for-profit social services organization. The plaintiff and his wife,suing derivatively, commenced this action against the defendant, alleging, inter alia, that thestorage area constituted a dangerous condition that violated numerous provisions of the NewYork City Building Code.
The Supreme Court denied the defendant's motion for summary judgment dismissing thecomplaint, finding that triable issues of fact existed as to whether the defendant had relinquishedcontrol of the premises, and had constructive notice of the alleged hazard. We affirm.
An out-of-possession landlord is generally not responsible for injuries that occur on itspremises unless it has retained control over the premises or is contractually obligated to maintainor [*2]repair the alleged hazard (see Couluris v Harbor Boat Realty,Inc., 31 AD3d 686 [2006]; Knipfing v V&J, Inc., 8 AD3d 628, 628-629 [2004]; Eckers vSuede, 294 AD2d 533 [2002]). Reservation of a right of re-entry for inspection and repair ina lease may, under certain circumstances, constitute sufficient retention of control to imposeliability for injuries caused by an alleged hazard (see Guzman v Haven Plaza Hous. Dev.Fund Co., 69 NY2d 559, 566 [1987]). Here, the defendant established its prima facieentitlement to summary judgment by submitting the entire lease and an affidavit of its physicalplant manager, both of which demonstrated that it relinquished control of the leased premises andthat it was not obligated under the terms of the lease to perform interior maintenance (see Couluris v Harbor Boat Realty,Inc., 31 AD3d 686 [2006]). However, in opposition, the plaintiff raised triable issues offact as to whether the defendant actually was an out-of-possession landlord which hadrelinquished control and whether the defendant had constructive notice of the alleged dangerouscondition (see Ingargiola v WaheguruMgt., 5 AD3d 732 [2004]; Zappel v Port Auth. of N.Y. & N.J., 285 AD2d 389[2001]; Fucile v Grand Union Co., 270 AD2d 227 [2000]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint.
The defendant's remaining contentions are without merit. Santucci, J.P., Covello, Carni andBalkin, JJ., concur.