Heim v. Trustees of D.C. Univ. in City of N.Y.

• Citation: 81 A.D.3d 507,917 N.Y.S.2d 159
• Parties: Edward HEIM, et al., Plaintiffs-Respondents, v. The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK, Defendant-Appellant, City of New York, et al., Defendants-Respondents.
• Decision Date: 17 February 2011
• Court: New York Supreme Court Appellate Division

917 N.Y.S.2d 159

81 A.D.3d 507

Edward HEIM, et al., Plaintiffs-Respondents,

v. The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK, Defendant-Appellant,City of New York, et al., Defendants-Respondents.

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

Feb. 17, 2011.

Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel), for appellant.

Larkin, Axelrod, Ingrassia and Tetenbaum, LLP, Newburgh (Michael Kolb of counsel), for Heim respondents.

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for municipal respondents.

TOM, J.P., SAXE, DeGRASSE, FREEDMAN, JJ.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered February 11, 2010, which denied defendant Columbia's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for leave to amend the complaint to assert a cause of action against Columbia under General Municipal Law (GML) § 205-e(3), unanimously reversed, on the law, without costs, the motion granted, the cross motion denied, and the complaint dismissed as against Columbia. The Clerk is directed to enter judgment in favor of Columbia accordingly.

An out-of-possession landlord with a right of reentry may be held liable where it has constructive notice of a "significant structural or design defect in violation of a specific statutory safety provision" ( Quinones v. 27 Third City King Rest., 198 A.D.2d 23, 24, 603 N.Y.S.2d 130 [1993] ). Columbia's contention that it did not have a right to reenter the premises to inspect or make repairs is belied by the plain language of the governing lease. Nonetheless, we find that the missing drain cover did not constitute a structural defect ( see Avila v. Rahman NY, 275 A.D.2d 271, 272, 713 N.Y.S.2d 17 [2000]; Morrone v. Chelnik Parking Corp., 268 A.D.2d 268, 270, 701 N.Y.S.2d 48 [2000] ). Moreover, the Building Code provisions upon which plaintiff relies, relating to the load-bearing capacity of the basement floor, do not avail him, because they were designed to prevent a different harm from that allegedly suffered by plaintiff( see Avila, 275 A.D.2d at 272, 713 N.Y.S.2d 17). Accordingly, Columbia cannot be held liable for plaintiff's injury under a theory of constructive notice ( see 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] ), and plaintiffs' common-law negligence and Labor Law § 200 claims fail.

Other than their...