| Devlin v Blaggards III Rest. Corp. |
| 2011 NY Slip Op 00258 [80 AD3d 497] |
| January 18, 2011 |
| Appellate Division, First Department |
| Nora Teresa Devlin et al., Respondents, v Blaggards IIIRestaurant Corp., Doing Business as Blaggards Pub, et al., Respondents, and Fraglow Realty LLC,Appellant. |
—[*1] Carol R. Finocchio, New York, for Nora Teresa Devlin and Ian Mel Devlin, respondents. Wade Clark Mulcahy, New York (Georgia G. Stagias of counsel), for Blaggards III RestaurantCorp, and Blaggards Restaurant Corp., respondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered May 26, 2010, which,insofar as appealed from as limited by the briefs, denied the cross motion of defendant Fraglow RealtyLLC (Fraglow) for summary judgment dismissing the complaint as against it, unanimously reversed, onthe law, without costs, and the cross motion granted. The Clerk is directed to enter judgmentaccordingly. Appeal from order, same court and Justice, entered November 30, 2010, which, inter alia,granted the motion of defendant Blaggards III Restaurant Corp. (Blaggards) to reargue, and uponreargument, granted Blaggards' motion for summary judgment dismissing Fraglow's cross claim forcontractual indemnification, unanimously dismissed, without costs, as academic.
Plaintiff, an employee of Blaggards, sustained injuries when she slipped on a wet bathroom floorallegedly caused by a leaking air conditioning vent. Plaintiff claimed that Blaggards' owner and thebuilding's owner, Fraglow, were aware of the defective condition several weeks before her accident,since the subject vent was inspected by Blaggards' owner and the building's superintendent.
As an out-of-possession owner, Fraglow had no obligation to perform repairs. Although Fraglowreserved a right in the lease to enter the premises to make repairs, it could only be found liable forfailing to do so if the nature of the defect that caused the injuries was a significant structural or designdefect that was contrary to a specific statutory provision (see Malloy v Friedland, 77 AD3d 583 [2010]; Babich v R.G.T. Rest. Corp., 75 AD3d439, 440 [2010]). Since there is no evidence that the condition which caused plaintiff to slipconstituted such a defect, there is no basis to impose liability for plaintiff's accident on Fraglow. Thatconclusion is not affected by whether or not Fraglow had knowledge of the defective condition prior tothe [*2]accident or retained a right to reenter the premises to inspectand repair under the lease.
In view of the foregoing, Fraglow's appeal from the November 30, 2010 order is dismissed asacademic. Concur—Gonzalez, P.J., Mazzarelli, Moskowitz, Acosta and RomÁn, JJ.[Prior Case History: 2010 NY Slip Op 31294(U).]