| Rothstein v 400 E. 54th St. Co. |
| 2008 NY Slip Op 04150 [51 AD3d 431] |
| May 1, 2008 |
| Appellate Division, First Department |
| Martin Rothstein, Respondent-Appellant, v 400 East 54thStreet Company et al., Appellants-Respondents, and Starbucks Coffee Company et al.,Respondents-Respondents, et al., Defendant. |
—[*1] Law Offices of Louis Grandelli, P.C., New York (John J. Rapaw of counsel), forrespondent-appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (George N. Tompkins, III ofcounsel), for Starbucks Coffee Company, respondent-respondent. Brody, Benard & Branch, LLP, New York (Mary Ellen O'Brien of counsel), for BerkeleyAssociates, respondent-respondent.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 3, 2007,which granted the motions of defendants Berkeley Associates and Starbucks Coffee Company forsummary judgment dismissing the complaint and all cross claims as against them, unanimouslyaffirmed, without costs.
Plaintiff was injured when, while descending stairs outside the Starbucks' premises located ina condominium building owned by defendant 400 East 54th Street Co., he slipped and fell on anicy condition. Starbucks leased the premises from Berkeley, and there was a 10-foot-wide plazaarea between the entrance to Starbucks and the stairs leading to the sidewalk.
The court properly granted summary judgment in favor of Berkeley because as unit owner ofthe premises, it owed no duty to plaintiff inasmuch as the common areas of the condominium, inthis instance the plaza area and steps, were solely under the control of the condominium board ofmanagers, and owners of individual units are not liable for injuries sustained as a result of defectsin the common elements (see Pekelnayav Allyn, 25 AD3d 111, 121 [2005]). Nor were the common elements part of thepremises Berkeley leased to Starbucks, who bore no contractual responsibility for maintainingthe stairs, which were not for its exclusive benefit. Even if such a [*2]contractual duty existed, the record shows that there are no triableissues of fact as to whether Starbucks, in failing to exercise reasonable care in the performance ofits duties, launched a force or instrument of harm, whether plaintiff detrimentally relied on thecontinued performance of the contracting party's duties, or whether Starbucks entirely displacedthe owner's duty to maintain the premises safely (see Espinal v Melville Snow Contrs., 98NY2d 136, 139-140 [2002]). Furthermore, even assuming that an employee of Starbucks hadindeed salted the steps prior to the accident, there was no showing that this made the steps moredangerous (see Williams v KJAELCorp., 40 AD3d 985 [2007]). Concur—Mazzarelli, J.P., Friedman, Sweeny andMoskowitz, JJ.