Opinion
2013-11-13
Ann DENERMARK, appellant, v. 2857 WEST 8TH STREET ASSOCIATES, et al., respondents (and a third-party action).
Alan C. Glassman, Lynbrook, N.Y., for appellant. Debra J. Millman, P.C., New York, N.Y. (Craig F. Wilson of counsel), for respondent 2857 West 8th Street Associates.
Alan C. Glassman, Lynbrook, N.Y., for appellant. Debra J. Millman, P.C., New York, N.Y. (Craig F. Wilson of counsel), for respondent 2857 West 8th Street Associates.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel; Cindy A. Singh on the brief), for respondent City of New York.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated December 15, 2011, as granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
While exiting through a door of a building owned by the defendant 2857 West 8th Street Associates (hereinafter West 8th Street) and leased to the defendant City of New York, the plaintiff “overstepped” a single step, causing her to trip and fall onto the adjacent sidewalk.
Contrary to the defendants' contentions, the plaintiff sufficiently identified the condition that caused her to “overstep” the step, since she alleged that the length of the step in relation to the door was insufficient ( see DiGiantomasso v. City of New York, 55 A.D.3d 502, 503, 866 N.Y.S.2d 184).
Since it is undisputed that the door leaf, that is, the swing of the door, extended beyond the length of the step, the defendants failed to establish, prima facie, that this condition did not violate Administrative Code of City of N.Y. § 27–371(h), which requires that “[t]he floor on both sides of all exit and corridor doors shall be ... at least equal to the width of the door leaf.” Nor did the defendants establish, prima facie, that there was no causal connection between the violation and the plaintiff's fall ( see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280;Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 922 N.Y.S.2d 550). Thus, a triable issue of fact exists as to proximate cause.
West 8th Street also failed to establish, prima facie, that as an out-of-possession landlord it had no duty to repair the condition on the premises. An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs ( see Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 929 N.Y.S.2d 620;Tragale v. 485 Kings Corp., 39 A.D.3d 626, 627, 834 N.Y.S.2d 256;Knipfing v. V & J, Inc., 8 A.D.3d 628, 628–629, 779 N.Y.S.2d 244). Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition. In West 8th Street's lease with the City, West 8th Street retained the right to re-enter the premises and repair the area at issue ( see Hakim v. 65 Eighth Ave., LLC, 42 A.D.3d 374, 840 N.Y.S.2d 323;Nikolaidis v. La Terna Rest., 40 A.D.3d 827, 835 N.Y.S.2d 726). Further, the condition on the premises constituted a violation of a statutory provision sufficient to impose liability upon West 8th Street ( see Roveto v. VHT Enters., Inc., 17 A.D.3d 341, 342, 791 N.Y.S.2d 843;Griffin v. Sadauskas, 14 A.D.3d 930, 787 N.Y.S.2d 721).
Although West 8th Street retained the right to repair the area at issue, this did not relieve the City, as tenant, of its common-law obligation to keep the premises reasonably safe ( see Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 855, 931 N.Y.S.2d 336;Elbadawi v. Myrna & Mark Pizzeria, Inc., 70 A.D.3d 627, 628, 894 N.Y.S.2d 495). Thus, the City failed to establish, prima facie, that it did not owe the plaintiff that duty ( see Milewski v. Washington Mut., Inc., 88 A.D.3d at 855, 931 N.Y.S.2d 336).
Accordingly, the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them should have been denied.