| Elbadawi v Myrna & Mark Pizzeria, Inc. |
| 2010 NY Slip Op 00802 [70 AD3d 627] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Nashwa Elbadawi, Appellant, v Myrna & Mark Pizzeria,Inc., Doing Business as Angelica Pizza & Restaurant, Also Known as Angelica PizzeriaRestaurant, Respondent, et al., Defendants. |
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In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Schack, J.), dated October 3, 2008, as granted themotion of the defendant Myrna & Mark Pizzeria, Inc., doing business as Angelica Pizza &Restaurant, also known as Angelica Pizzeria Restaurant for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the motion which were for summary judgment dismissing so much of thecomplaint as was based on common-law negligence and which alleged violations of theAdministrative Code of City of NY § 27-371 (h) and § 27-370 (d), and substitutingtherefor a provision denying those branches of the motion; as so modified, the order is affirmedinsofar as appealed from, with costs to the plaintiff.
The plaintiff, Nashwa Elbadawi, after purchasing pizza, allegedly fell and was injured duringdaylight hours between 5:00 p.m. and 6:00 p.m. on August 16, 2003, while exiting through adoorway serving as one of two access ways to the restaurant owned and operated by thedefendant Myrna & Mark Pizzeria, Inc., doing business as Angelica Pizza & Restaurant, alsoknown as Angelica Pizzeria Restaurant (hereinafter M & M).
M & M moved for summary judgment on the ground, inter alia, that as the tenant, it owed noduty to the plaintiff to provide safe ingress to and egress from to the pizzeria, and, since thelandlord reserved the right to reenter, only the landlord owed a duty to the plaintiff. However,since M & M had a common-law duty to remove dangerous defects from commercial premises itoccupied notwithstanding the landlord's contractual right of reentry to make repairs (seeChadis v Grand Union Co., 158 AD2d 443 [1990]), and there was evidence in the recordthat an owner of M & M had repaired the area where the plaintiff fell, it failed to establish itsprima facie right to dismissal of the common-law negligence action (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Indence v 225 Union Ave. Corp., 38 AD3d 494 [2007]).[*2]
M & M also moved to dismiss so much of the complaintas was based upon violations of Administrative Code of the City of New York §§27-127, 27-128, 27-370 (d), § 27-371 (h), § 27-375 (d) (2) and § 19-152. Theplaintiff's expert, who examined both the step and the photographs of the step, stated in hisaffidavit that the entrance at the doorway where the plaintiff fell violated the New York CityAdministrative Code in that it was uneven and its single riser varied in height from betweenseven to eight inches. While violation of Administrative Code §§ 27-127, 27-128,27-375 (d) (2) and § 19-152 cannot serve as a predicate for liability (see Nikolaidis v La Terna Rest., 40AD3d 827, 828 [2007]), triable issues exist as to violations of Administrative Code §27-371 (h) and § 27-370 (d) which may serve as a predicate for liability.
Accordingly, those branches of the motion of M & M which were for summary judgmentdismissing the common-law negligence cause of action and the claims based upon allegedviolations of Administrative Code § 27-371 (h) and § 27-370 (d) should have beendenied. Covello, J.P., Angiolillo, Balkin and Sgroi, JJ., concur.