Qiu v. J&J Grocery & Deli Corp.

• Decision Date: 27 March 2014
• Court: New York Supreme Court — Appellate Division
• Parties: YUYING QIU, Plaintiff–Respondent, v. J & J GROCERY & DELI CORP., et al., Defendants–Respondents, 98 Rivington Realty Corp., Defendant–Appellant.

115 A.D.3d 627

982 N.Y.S.2d 755

2014 N.Y. Slip Op. 02150

YUYING QIU, Plaintiff–Respondent,

v.J & J GROCERY & DELI CORP., et al., Defendants–Respondents,98 Rivington Realty Corp., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

March 27, 2014.

Law Offices of Michael E. Pressman, New York (Robert S. Bonelli of counsel), for appellant.

Steven Louros, New York, for Yuying Qiu, respondent.

Law Office of Steven G. Fauth, LLC, New York (Scott S. Levinson of counsel), for J & J Grocery & Deli Corp. and Rajeh Jawad, respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 28, 2012, which denied defendant 98 Rivington Realty Corp.'s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against 98 Rivington Realty Corp. The Clerk is directed to enter judgment accordingly.

Although the motion court properly found that the issue of whether a dangerous or defective condition exists which is sufficiently hazardous to create liability is generally a question of fact, to be resolved by a jury ( Alexander v. New York City Tr., 34 A.D.3d 312, 313, 824 N.Y.S.2d 262 [1st Dept.2006] ), we find that the out-of-possession landlord was entitled to summary judgment where the plaintiff fell through an open trap door in the tenant's store. Even though the landlord reserved the right to reenter the leased premises for purposes of inspection and repair, the properly functioning trap door that was left open by someone within the tenant's control did not constitute “ ‘a significant structural or design defect’ ” ( see Bing v. 296 Third Ave. Group, L.P., 94 A.D.3d 413, 414, 941 N.Y.S.2d 141 [1st Dept.2012],lv. denied 19 N.Y.3d 815, 2012 WL 5308073 [2012];Baez v. Barnard Coll., 71 A.D.3d 585, 898 N.Y.S.2d 29 [1st Dept.2010] ) and plaintiff failed to show a violation of a specific statutory provision, as required to impose liability upon the out-of-possession landlord ( see Centeno v. 575 E. 137th St. Real Estate, Inc., 111 A.D.3d 531, 975 N.Y.S.2d 335 [1st Dept.2013] ). A general “non-specific safety provision” such as Administrative Code of City of N.Y. § 28–301.1 is insufficient to impose liability on an out-of-possession owner ( see id.).

We have considered respondents' remaining contentions and find them unavailing.

MOSKOWITZ, J.P., RICHTER, MANZANET–DANIELS, CLARK, KAPNICK, JJ., concur.