| Brown v BT-Newyo, LLC |
| 2012 NY Slip Op 02377 [93 AD3d 1138] |
| March 29, 2012 |
| Appellate Division, Third Department |
| Jon R. Brown Jr., Respondent, v BT-Newyo, LLC,Formerly Known as Newbany Corporation, Appellant. |
—[*1] Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (Daniel G. Heppner of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered June 30,2011 in Ulster County, which denied defendant's motion for summary judgment dismissing thecomplaint.
In February 2005, plaintiff allegedly slipped on a patch of ice in a parking lot owned bydefendant. Defendant leased the premises to plaintiff's employer, United Parcel Service(hereinafter UPS), pursuant to a written lease agreement. Plaintiff commenced this actionalleging, among other things, that defendant was negligent in failing to place gutters and snowstops on the roof of the building to prevent the accumulation of snow and ice, which would thenmelt off the roof onto the parking lot, where it would freeze and create a hazardous condition.Plaintiff asserted that defendant thereby violated the Property Maintenance Code of New YorkState (see generally 19 NYCRR 1226.1). Defendant moved for summary judgmentdismissing the complaint. Supreme Court denied the motion, prompting defendant's appeal.
Defendant, as an out-of-possession landlord, was not liable for plaintiff's injuries. Generally,"an out-of-possession landlord who relinquishes control of the premises is not liable toemployees of a lessee for personal injuries caused by an unsafe condition existing on the [*2]premises" (Brady v Cocozzo, 174 AD2d 814, 814 [1991]).Under an exception to that rule, "[a]n out-of possession landlord who retains the right to reenterthe leased premises for purposes of inspection or structural repair may be held liable for injuriesto third parties only where the injuries arise from structural defects or a specific statutoryviolation" (Sauer v Mannino, 309 AD2d 1053, 1053-1054 [2003]; see Guzman vHaven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566 [1987]).[FN1]"[O]nly a significant structural or design defect that is contrary to a specific statutory safetyprovision will support imposition of liability against the landlord" (Velazquez v TylerGraphics, 214 AD2d 489, 489 [1995]). Lack of gutters on the building did not constitutesuch a defect.
Defendant met its burden of establishing a prima facie entitlement to summary judgment.UPS management employees testified that UPS hired a company to plow snow and apply sandand salt on the premises when necessary. The owner of the plowing company testified regardinghis duties and performance of them. A UPS manager testified that he recommended to UPS'splant engineering department that gutters be installed on the building because he was concernedthat icicles forming on the edge of the roof could pose a danger.[FN2]Defendant also submitted the expert affidavit of a licensed architect who averred that the absenceof gutters on this type of building was typical, the building complied with all applicable buildingcodes and it did not violate any statutory safety provisions.
In opposition, plaintiff failed to raise a triable issue of fact regarding whether defendantviolated a specific statutory safety provision. Plaintiff submitted an expert affidavit of a licensedprofessional engineer who averred that, by failing to install gutters and snow stops, defendant leftno proper means for snow and ice to drain away from the building, creating a hazardouscondition in violation of Property Maintenance Code §§ 302.3, 303.1 and 303.7(see 19 NYCRR 1226.1 [a]). Even if plaintiff could meet its burden by relying onviolations of regulations as opposed to statutory violations (but see Velazquez v TylerGraphics, 214 AD2d at 490), and if plaintiff had submitted proof that the regulations wereviolated, the cited provisions of the Property Maintenance Code are either inapplicable or generalrather than specific.
Property Maintenance Code § 302.3 requires that driveways or parking areas "shall bekept in a proper state of repair, and maintained free from hazardous conditions." Similarly,Property Maintenance Code § 303.1 requires that the exterior of structures "shall bemaintained in good repair, structurally sound and sanitary so as not to pose a threat to the publichealth, safety or welfare." These are general provisions, not requiring owners to comply with anyspecific safety requirements, and there is no proof that the building was not in good repair or was[*3]structurally unsound. Property Maintenance Code §303.7 provides, in part, that "[r]oof drains, gutters and downspouts shall be maintained in goodrepair and free from obstructions. Roof water shall not be discharged in a manner that creates apublic nuisance." That section does not require buildings to have gutters and downspouts; it onlyrequires that, if a building does have them, those drainage aides be in good repair andunobstructed. The record does not contain proof that water from the roof created a publicnuisance, as the water remained on defendant's property and, although the public was invited touse portions of the property, the record lacks proof that the roof water caused an infringement"upon the exercise of rights common to all people" (Haire v Bonelli, 57 AD3d 1354, 1358 [2008]; see 532 MadisonAve. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 292 [2001]).
Finally, plaintiff may not rely on defendant's purported breach of the lease to defeatdefendant's motion. The lease specifically provides that the rights and obligations therein areintended only for the benefit of defendant and UPS, not for any third parties. Thus, any allegedbreach of the lease may not give rise to defendant's liability to plaintiff as a third-partybeneficiary (see O'Gorman v Gold Shield Sec. & Investigation, 221 AD2d 325, 326[1995]).
Defendant's remaining contentions, to the extent that they are properly before us, have beenreviewed and we find them unavailing.
Mercure, A.P.J., Lahtinen, Spain and Stein, JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion granted, summary judgment awarded to defendant and complaintdismissed.
Footnote 1: The lease here required UPS tobe responsible for all maintenance and repairs on the premises, including prompt removal ofsnow and ice. Viewing the lease in plaintiff's favor for purposes of this motion, however,defendant reserved the right to enter the premises to inspect and to remedy problems if UPS didnot fulfill its obligations under the lease.
Footnote 2: UPS installed gutters followingplaintiff's accident, without obtaining defendant's permission. While not relevant to liability, thisdemonstrates that UPS had the authority to install gutters on the building with no input fromdefendant.