| Bing v 296 Third Ave. Group, L.P. |
| 2012 NY Slip Op 02424 [94 AD3d 413] |
| April 3, 2012 |
| Appellate Division, First Department |
| Carroll Bing, Respondent, v 296 Third Avenue Group,L.P., et al., Appellants, et al., Defendant. |
—[*1] The Rubino Law Firm, New York (JenniElena Rubino of counsel), for respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered June 17, 2011, thatdenied defendants 296 Third Avenue, L.P. and 296 Third Avenue Realty Corp.'s motion forsummary judgment dismissing the complaint as against them and on their cross claim forcontractual indemnification, unanimously modified, on the law, to grant the motion to dismissthe complaint, and otherwise affirmed, without costs. The Clerk is directed to enter judgmentdismissing the complaint against said defendants.
In this action, plaintiff claims that she was injured when she allegedly slipped and fell on asnow or ice condition on a ramp that extends from the sidewalk to the interior of a newsstandlocated at 162 East 23rd Street in Manhattan (the premises). Pursuant to a commercial lease (thelease), defendants 296 Third Avenue Group, L.P. and 296 Third Avenue Realty Corp. (landlord)leased the premises to the operator of the newsstand, defendant Al Hafeez News Inc. (tenant).The 296 defendants moved for summary judgment on the ground that they are out-of-possessionlandlords with no duty to maintain the premises or to remove snow. They also argued that theyare entitled to contractual indemnification from defendant tenant.
The motion court denied the motion for summary judgment as to liability. The court held thatan issue of fact existed as to whether the ramp where plaintiff allegedly slipped was within thedemised premises because "[t]he ramp is open to the sidewalk, and so entry into the interior ofthe store is not necessary." However, the question of whether the ramp is part of the premises orthe sidewalk is irrelevant because, under either scenario, tenant, and not landlord, wasresponsible for clearing the ramp of snow or ice.
Indeed, if the ramp were part of the sidewalk, landlord was not responsible for clearing it ofsnow or ice because the lease provided that tenant was responsible for maintaining its premisesand removing snow and ice from the sidewalk. Thus, the motion court's application ofAdministrative Code of the City of New York § 7-210 (b), that imposes liability on ownersfor, inter alia, their "negligent failure to remove snow, ice, dirt or other material from thesidewalk," was misplaced. In addition, section 7-210 is not applicable to this action becauseplaintiff did not [*2]allege landlord's violation of this section ofthe Administrative Code.
Moreover, if the ramp were part of the premises, landlord was not responsible for clearing itof snow or ice because, pursuant to the lease, landlord relinquished its possession and controlover the premises and was, thus, an out-of-possession owner. "An out-of-possession landlord isgenerally not liable for the condition of the demised premises unless the landlord has acontractual obligation to maintain the premises, or right to reenter in order to inspect or repair,and the defective condition is 'a significant structural or design defect that is contrary to a specificstatutory safety provision' " (Ross vBetty G. Reader Revocable Trust, 86 AD3d 419, 420 [2011]). Although landlordretained the right of reentry pursuant to the lease, plaintiff identified the defective condition assnow or ice on the ramp. However, snow or ice is not a significant structural or design defect.Accordingly, the trial court erred in denying landlord's motion. As an out-of-possession owner,landlord was entitled to judgment as a matter of law (see Ross, 86 AD3d at 420).Concur—Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Román, JJ.