Lynch v. Lom-Sur Co., Inc., LOM-SUR

• Decision Date: 03 May 1990
• Docket Number: LOM-SUR
• Citation: 161 A.D.2d 885,555 N.Y.S.2d 930
• Parties: Catherine LYNCH, Respondent, v.COMPANY, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 930

555 N.Y.S.2d 930

161 A.D.2d 885

Catherine LYNCH, Respondent, v. LOM-SUR COMPANY, INC., Appellant.

Supreme Court, Appellate Division,

Third Department.

May 3, 1990.

Gulling, Schimpf & Taylor (Joan Matalavage, of counsel), Albany, for appellant.

Linnan, Bacon & Myer (James D. Linnan, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ.

WEISS, Justice.

Appeal from an order of the Supreme Court (Travers, J.), entered February 28, 1989 in Rensselaer County, which denied defendant's motion for summary judgment dismissing the complaint.

On May 20, 1960 defendant leased its vacant land in the Town of North Greenbush, Rensselaer County, to Union National Bank, upon which the bank constructed a branch office and parking lot. In this action, plaintiff, a bank employee, seeks recovery for personal injuries sustained when she slipped on ice and fell in the parking lot on her way to work. Defendant moved for summary judgment contending that it retained no control and authority over the premises, nor the right to enter, examine and repair. Supreme Court found that although the lessee covenanted to repair and maintain the premises, the retention of the right to re-enter and inspect in the event of a default in the lease constituted sufficient control by defendant to subject it to liability and to deny summary judgment (see, Guzman v. Haven Plaza Housing Dev. Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51). The court further held that the owner-lessor's retention of a reversionary interest was an assumption of the responsibility to keep the property in good condition, citing Putnam v. Stout, 38 N.Y.2d 607, 381 N.Y.S.2d 848, 345 N.E.2d 319). We disagree and reverse.

Initially, we observe that Guzman v. Haven Plaza Housing Dev. Fund Co. (supra ) is limited by its own terms to a situation involving a duty imposed by a statute to repair and maintain, or to comply with a safety standard (id., 69 N.Y.2d at 567 n. 4, 516 N.Y.S.2d 451, 509 N.E.2d 51), not found here. We further find that the rule set forth in Putnam v. Stout (supra) requires, among other things, a covenant by the lessor to keep the land in repair (id., 38 N.Y.2d at 617, 381 N.Y.S.2d 848, 345 N.E.2d 319), also lacking here.

It is well settled that an owner-lessor is not liable in negligence for conditions upon the land after the transfer of possession and control (see, Mancini v. Cappiello Realty Corp., 144 A.D.2d 154, 534 N.Y.S.2d 481, lv. denied 73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355; Hildenbrand v. Porto, 144 A.D.2d 131, 132, 534 N.Y.S.2d 461, lv. denied 73 N.Y.2d 706, 539 N.Y.S.2d 298, 536 N.E.2d 627; Bellen v. Lomanto, 125 A.D.2d 905, 510 N.Y.S.2d 265, lv. denied 69 N.Y.2d 610, 517 N.Y.S.2d 1025, 511 N.E.2d 84). The terms of the lease are clear and unambiguous. There is no proof in the record that defendant retained any control over the property or contracted to make repairs, and...