Marino v. A.G. Properties of Kingston Llc

• Citation: 2011 N.Y. Slip Op. 05165,85 A.D.3d 1429,926 N.Y.S.2d 678
• Parties: John MARINO et al., Respondents–Appellants,v.A.G. PROPERTIES OF KINGSTON, LLC, et al., Defendants,andTechCity 52, LLC, Appellant–Respondent.
• Decision Date: 16 June 2011
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1429
926 N.Y.S.2d 678
2011 N.Y. Slip Op. 05165

John MARINO et al., Respondents–Appellants,
v.
A.G. PROPERTIES OF KINGSTON, LLC, et al., Defendants,andTechCity 52, LLC, Appellant–Respondent.

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

June 16, 2011.

[926 N.Y.S.2d 679]

Konstanty Law Office, Oneonta (James E. Konstanty of counsel), for appellant-respondent.Melley Platania, P.L.L.C., Rhinebeck (Kevin J. Rumsey of counsel), for respondents-appellants.Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.KAVANAGH, J.

[85 A.D.3d 1429] Cross appeals from an order of the Supreme Court (Gilpatric, J.), entered November 18, 2010 in Ulster County, which, among other things, denied a motion by defendant TechCity 52, LLC, for, among other things, summary judgment dismissing the complaint against it.

Plaintiff John Marino and his wife, derivatively, commenced this action alleging that, in May 2006, Marino injured his knee while ascending stairs inside a building leased by his employer from defendant TechCity 52, LLC (hereinafter defendant), the building's owner. Defendant moved to dismiss plaintiffs' complaint contending that it failed to state a cause of action pursuant to CPLR 3211(a)(7) and, in the alternative, for summary judgment dismissing the complaint pursuant to CPLR 3212. Plaintiffs cross-moved for summary judgment on the issue of liability. Supreme Court denied both motions, and these cross appeals ensued.

“While an out-of-possession landlord generally will not be responsible for dangerous conditions existing on leased premises, it is settled that a landlord may be liable for failing to repair a dangerous condition, of which it has notice, on leased premises [85 A.D.3d 1430] if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs” ( Oates v. Iacovelli, 80 A.D.3d 1059, 1060, 915 N.Y.S.2d 711 [2011] [internal quotation marks and citations omitted]; see Hart v. O'Brien, 72 A.D.3d 1257, 1258, 898 N.Y.S.2d 697 [2010]; Stickles v. Fuller, 9 A.D.3d 599, 600, 780 N.Y.S.2d 649 [2004] ). Here, while defendant was, in fact, an out-of-possession landlord, the lease agreement gave it the right “at all reasonable times to enter the ... premises for the purpose of operating, maintaining, repairing or altering the Building, its systems and facilities,” and to inspect the same. Further, under the lease, the tenant was solely responsible for maintaining and...