Johnson v. Urena Service Center

• Decision Date: 30 May 1996
• Citation: 227 A.D.2d 325,642 N.Y.S.2d 897
• Parties: Gloria JOHNSON, Individually and as Mother and Natural Guardian of Kareem Johnson, an Infant, et al., Plaintiffs, v. URENA SERVICE CENTER, Doing Business as Getty Gas Station, et al., Defendants. Gloria JOHNSON, Individually and as Mother and Natural Guardian of Kareem Johnson, an Infant, et al., Plaintiffs-Respondents, v. URENA SERVICE CENTER, Doing Business as Getty Gas Station, et al., Defendants, and Getty Petroleum Corp., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 897

642 N.Y.S.2d 897

227 A.D.2d 325

Gloria JOHNSON, Individually and as Mother and Natural Guardian of Kareem Johnson, an Infant, et al., Plaintiffs, v. URENA SERVICE CENTER, Doing Business as Getty Gas Station,

et al., Defendants.

Gloria JOHNSON, Individually and as Mother and Natural Guardian of Kareem Johnson, an Infant, et al., Plaintiffs-Respondents, v. URENA SERVICE CENTER, Doing Business as Getty Gas Station, et al., Defendants, and Getty Petroleum Corp., et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

May 30, 1996.

Martin Rothman, for Plaintiffs-Respondents.

Robert A. Faller, for Defendants-Appellants.

Before MURPHY, P.J., and SULLIVAN, ELLERIN, NARDELLI and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered June 21, 1995, which denied defendants-appellants' motion for summary judgment dismissing the complaint and cross-claims as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing and severing the complaint.

In the early evening hours of October 20, 1990, plaintiff's infant son, Kareem Johnson, then age 13, entered a Getty Gas Station located at Melrose Avenue and East 161st Street in the Bronx to use the public air hose to fill his bicycle tires. The station was owned by defendant Leemilt's Petroleum Inc. ["Leemilt"], which leased it to defendant Getty Petroleum Corp. ["Getty"], which, in turn, leased it to defendant Urena Service Center d/b/a Getty Gas Station.

According to Kareem, he was accosted by a young man, identified as Paul Fludd, who tried to steal his bicycle. During the course of their extended 20 minute struggle, during which Kareem cried repeatedly for help, his assailant produced a knife and stabbed him, causing him grievous injuries, including rendering him a permanent paraplegic.

Plaintiff commenced two actions against various defendants. At issue on this motion is the liability of the defendants-appellants Leemilt and Getty.

A landlord is generally not liable for negligence with respect to the condition of property after the transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs and/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 (Velazquez v. Tyler Graphics, 214 A.D.2d 489, 625 N.Y.S.2d 537; Quinones v. 27 Third City King Restaurant, 198 A.D.2d 23, 24, 603 N.Y.S.2d 130; Russo v. 491 West Street Corp., 176 A.D.2d 672, 575 N.Y.S.2d 322; see also, Guzman v. Haven Plaza Housing Dev. Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51; Putnam v. Stout, 38 N.Y.2d 607, 381 N.Y.S.2d 848, 345 N.E.2d 319).

Here, plaintiffs have offered no argument or evidence that defendant Leemilt had any right or obligation...