Opinion
12-06-2016
Laura LEDESMA, Plaintiff–Respondent, v. AMA GROCERY, CORP., et al., Defendants, KPV Realty, LLC, et al., Defendants–Appellants. [And a Third–Party Action].
Fiden & Norris, LLP, Harrison (Charles B. Norris of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Fiden & Norris, LLP, Harrison (Charles B. Norris of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
RICHTER, J.P., MANZANET–DANIELS, FEINMAN, KAPNICK, GESMER, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 14, 2016, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendants-appellants argue that they were out-of-possession landlords who were not responsible to maintain the area where plaintiff fell on a raised metal strip at the edge of a step at the entrance to the tenant's deli/grocery.
An out-of-possession landlord is generally not liable for negligence with respect to the condition of property after transfer of possession and control to the tenant unless the landlord “(1) is contractually obligated to make repairs or maintain the premises or (2) has a contractual right to reenter, inspect, and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision” (Vasquez v. The Rector, 40 A.D.3d 265, 266, 835 N.Y.S.2d 159 [1st Dept.2007] ; Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 420, 927 N.Y.S.2d 49 [1st Dept.2011] )
“Where an owner is not completely out-of-possession, it may be held liable as long as it had adequate notice of and a reasonable opportunity to repair the dangerous condition” (Federal Ins. Co. v. Evans Constr. of N.Y. Corp., 257 A.D.2d 508, 509, 684 N.Y.S.2d 223 [1st Dept.1999] ).It was undisputed that the lease agreement made appellant landlords responsible for repairs to the interior and exterior public portion of the premises. The court properly concluded that there was an issue of fact concerning whether the metal strip was affixed to a step that was located in the public portion of the premises, and the photographs submitted by the parties do not lay this issue to rest.