Lee v. Second Ave. Vill. Partners, LLC

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: ANITA R. FLORIO
• Citation: Lee v. Second Ave. Vill. Partners, LLC, 100 A.D.3d 601, 953 N.Y.S.2d 259, 2012 N.Y. Slip Op. 7276 (N.Y. App. Div. 2012)
• Decision Date: 07 November 2012
• Parties: Gusta LEE, et al., appellants, v. SECOND AVENUE VILLAGE PARTNERS, LLC, et al., respondents (and a third-party action).

100 A.D.3d 601

953 N.Y.S.2d 259

2012 N.Y. Slip Op. 07276

Gusta LEE, et al., appellants,

v. SECOND AVENUE VILLAGE PARTNERS, LLC, et al., respondents(and a third-party action).

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

Nov. 7, 2012.

Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl II of counsel), for appellants.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K. Raicus of counsel), for respondents.

ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 27, 2011, which granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint.

ORDERED that the order is reversed, on the law, with costs to the plaintiffs, and that branch of the defendants' motion which was for summary judgment dismissing the amended complaint is denied.

On September 19, 2007, the injured plaintiff, an employee of the third-party defendant, Starbucks Corporation, allegedly sustained personal injuries when the bottom step of a staircase leading from the street to the basement of the premises located at 145 Second Avenue in Manhattan broke from its weld, causing him to fall. Subsequently, the injured plaintiff, and his wife suing derivatively, commenced this action against the owners of the premises, Second Avenue Village Partners, LLC, and Jonis Realty Management Corp., as well as their managing agent, Citi–Urban Management Corp., alleging, among other things, that they were negligent in allowing, causing, and/or permitting hazardous and unsafe conditions to exist on the staircase. After discovery, the defendants moved, inter alia, for summary judgment dismissing the amended complaint, asserting that, as out-of-possession landlords and their managing agent, they were not responsible for the condition that allegedly caused the accident. The Supreme Court granted that branch of the motion.

“ ‘An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct’ ” ( Goggins v. Nidoj Realty Corp., 93 A.D.3d 757, 758, 940 N.Y.S.2d 674, quoting Mercer v. Hellas Glass Works Corp., 87 A.D.3d 987, 988, 930 N.Y.S.2d 18;see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 858...