Babich v. R.G.T. Rest. Corp.

• Citation: 75 A.D.3d 439,906 N.Y.S.2d 528
• Parties: Diane BABICH, et al., Plaintiffs-Appellants, v. R.G.T. RESTAURANT CORP., doing business as Punch, et al, Defendants-Respondents.
• Decision Date: 06 July 2010
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 528

75 A.D.3d 439

Diane BABICH, et al., Plaintiffs-Appellants,

v.R.G.T. RESTAURANT CORP., doing business as Punch, et al, Defendants-Respondents.

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

July 6, 2010.

S. John Bate, P.C., Staten Island (S. John Bate of counsel), for appellants.

Mintzer Sarowitz Zeris Ledva & Meyers LLP, New York (Erika L. Omundson of counsel), for R.G.T. Restaurant Corp., respondent.

Thomas D. Hughes, New York (Richard Rubinstein of counsel), for Harold Scher, respondent.

MAZZARELLI, J.P., ACOSTA, RENWICK, FREEDMAN, JJ.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 2, 2009, which granted defendant R.G.T.'s motion and defendant Scher's cross motion for summary judgment dismissing the complaint, modified, on the law, the motion by R.G.T. denied, and the complaint reinstated against that defendant, and otherwise affirmed, without costs.

This personal injury action stems from the injured plaintiff's fall down an interior staircase leading to a cellar where the restrooms were located in a buildingowned by Scher and operated as a restaurant by R.G.T. Following discovery, the restaurant moved for summary dismissal of the claims asserted against it, on the grounds, inter alia, that plaintiffs were unable to identify the cause of the fall and could not show a defect in the staircase. The owner cross-moved for summary dismissal on these same grounds, as well as the ground that it owed no duty to plaintiff to keep the premises safe as an out-of-possession landlord. Supreme Court granted the motion and cross motion,and dismissed the action on the ground of lack of evidence of a defective condition.

We agree with Supreme Court that the action against the owner should be dismissed, albeit on grounds different from those stated. A landlord is not generally liable for negligence with respect to the condition of property after its transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs or maintain the premises, or has a contractual right to reenter, inspect and make needed repairs at the tenant's expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision ( Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 326, 642 N.Y.S.2d 897 [1996], lv. denied 88 N.Y.2d 814, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996]; see McDonald v. Riverbay Corp., 308 A.D.2d 345, 764 N.Y.S.2d 185 [2003]; Quinones v. 27 Third City King Rest., 198 A.D.2d 23, 603 N.Y.S.2d 130 [1993] ). Here, the lease between the owner and the restaurant imposes no obligation on the former to make repairs or maintain the demised premises. While the owner retained the right to reenter, inspect and make repairs, there is no triable issue of fact as to whether the allegedly defective condition involved a significant structural or design defect contrary to a specific statutory safety provision. Accordingly, the out-of-possession landlord is entitled to summary judgment ( Torres v. West St. Realty Co., 21 A.D.3d 718, 721, 800 N.Y.S.2d 683 [2005], lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ).

We reach a different result with regard to the restaurant, which established its prima facie entitlement to summary judgment by submitting evidence that the staircase was in compliance with the applicable Building Code provisions ( see Administrative Code of City of N.Y. § 27-375[h] ). In opposition to the motion, plaintiffs submitted an affidavit from an expert architect who stated that he visited the building in question and observed that the existing stair was "steel with a matte black non-slip finish that is applied to it as required by New York City Building Code," but the "non-slip finish on the nosing of each tread and top platform is severely worn off," thereby "creating an extremely slippery condition at the edge nosing at the top platform and at each stair tread." This expert evidence submitted by plaintiffs raised a triable issue of fact as to whether the tread of the stairs complied with the pertinent regulations of the Building Code. Moreover, the injured plaintiff's testimony that she slipped on the top step of the subject stairway, coupled with her expert's testimony of the slippery condition of such steps due to worn-off treads, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by the allegedly defective condition ( see Garcia v. New York City Tr. Auth., 269 A.D.2d 142, 703 N.Y.S.2d 4 [2000]; Gramm v. State of New York, 28 A.D.2d 787, 281 N.Y.S.2d 235 [1967], affd. 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498 [1968] ).

All concur except FREEDMAN, J. who dissents in a memorandum as follows:

FREEDMAN, J. (dissenting).

I concur with the majority that the owner is entitled to summary judgment as an out-of-possession landlord. But in my view, summary judgment is also warranted for defendants because plaintiffs fail to make a prima facie showing that the condition of the stairs caused Diane Babich to fall on them. Accordingly, I would affirm the motion court's order dismissing the complaint.

In support of their motions for summary...