| Malloy v Friedland |
| 2010 NY Slip Op 07673 [77 AD3d 583] |
| October 28, 2010 |
| Appellate Division, First Department |
| John Malloy, Appellant, v Melvin Friedland et al., Respondents,et al., Defendant. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Edward J. O'Gorman of counsel),for respondents.
Order, Supreme Court, New York County (Joan Madden, J.), entered July 24, 2009, whichgranted the landlord defendants' motion for summary judgment, unanimously affirmed, without costs.
Plaintiff asserts he was injured in 2007 when he fell into a trapdoor opening while shopping atHamilton Heights Deli on Manhattan's upper west side. According to the record, the trapdoor had beenleft open by one of the tenant's employees.
It is well settled that "[a] landlord is not generally liable for negligence with respect to the conditionof property after its transfer of possession and control to a tenant unless the landlord is eithercontractually obligated to make repairs or maintain the premises, or has a contractual right to reenter,inspect and make needed repairs at the tenant's expense, and liability is based on a significant structuralor design defect that is contrary to a specific statutory safety provision" (Babich v R.G.T. Rest. Corp., 75 AD3d439, 440 [2010]). Although the lease agreement does state that the landlord has the right toreenter to make repairs, plaintiff has failed to show that the Friedland defendants violated any specificstatutory safety provision. Moreover, "[a] properly functioning trapdoor that is left open by someoneunder the tenant's control is not a structural defect, either pursuant to the lease or under case law" (Baez v Barnard Coll., 71 AD3d 585,586 [2010]).
Pursuant to the lease, the tenant had sole responsibility for maintaining the area where plaintiffalleges he sustained his injuries. Therefore, as out-of-possession owners, the Friedland defendantscannot be held liable under these circumstances (see Dexter v Horowitz Mgt., 267 AD2d 21,22 [1999]; see generally Lewis v Sears,Roebuck & Co., 35 AD3d 273 [2006]). Concur—Tom, J.P., Friedman, Catterson,Renwick and Manzanet-Daniels, JJ.