Opinion
2013-11-26
Gregorio LUCERO, Plaintiff–Appellant, v. DRK, LLC, et al. Defendants–Respondents.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant. Zisholtz & Zisholtz, LLP, Mineola (Stuart S. Zisholtz of counsel), for respondents.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant. Zisholtz & Zisholtz, LLP, Mineola (Stuart S. Zisholtz of counsel), for respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about August 29, 2012, which, insofar as appealed from as limited by the briefs, granted defendant New York City Industrial Development Agency's (IDA) motion for summary judgment dismissing the complaint as against it, and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
Supreme Court properly dismissed the complaint as against defendant IDA. Plaintiff correctly argues that IDA owned the premises at the time of plaintiff's accident, and that the ramp that collapsed constituted the type of structural defect for which constructive notice could be imposed upon the out-of-possession landowner. However, absent a contractual obligation to repair/maintain the premises, or the right to reenter it to make repairs at the tenant's expense, IDA may not be charged with constructive notice of that structural defect ( see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566–567, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987]; Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 326, 642 N.Y.S.2d 897 [1st Dept. 1996], lv. denied88 N.Y.2d 814, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996] ). Under this lease, not only was IDA not obligated to make repairs or maintain the premises, nor the right reserved by IDA to reenter to make such repairs at the tenant's expense, but the lease clearly and expressly disavowed any such obligations.
We have considered the parties' remaining contentions, and find them unavailing. FRIEDMAN J.P., RENWICK, FREEDMAN, FEINMAN, JJ., concur.