Nameny v. East New York Sav. Bank

• Decision Date: 16 December 1999
• Citation: 267 AD2d 108,699 N.Y.S.2d 412
• Parties: David NAMENY, Plaintiff-Appellant, v. The EAST NEW YORK SAVINGS BANK, et al., Defendants, and Andrew H. Kulak, Esq., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 412

699 N.Y.S.2d 412

David NAMENY, Plaintiff-Appellant, v. The EAST NEW YORK SAVINGS BANK, et al., Defendants, and Andrew H. Kulak, Esq., et al., Defendants-Respondents.

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

Dec. 16, 1999.

Anadel Vazquez, for Plaintiff-Appellant.

Kevin J. Philbin, for Defendants-Respondents.

ELLERIN, P.J., ROSENBERGER, ANDRIAS and BUCKLEY, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Harold Tompkins, J.), entered June 12, 1998, which, insofar as appealed from, granted the motion of defendants-respondents for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

On October 2, 1992, plaintiff was delivering food supplies to a restaurant operated by defendant Ernesto Rebollar when he fell on the stairs leading from the sidewalk to the basement, thereby suffering injury. According to plaintiff, he was caused to fall when the stairs "wobble[d]." Moreover, plaintiff submitted expert testimony that the stairs, which were made of wood, were visibly deteriorated, were unable to support a minimum load of 200 pounds, and did not have an adequate handrail.

Three months earlier, defendant Kulak had been appointed receiver of the building, with the authority to make reasonable and necessary repairs, and defendant Kinsey Corporation had been hired by defendant Kulak to act as his managing agent. Pursuant to the lease held by Rebollar, defendant Kulak had the right, but not the obligation, to enter the leased premises and to make inspections and repairs for the purpose of complying with laws and regulations.

On these facts, we find that the Supreme Court erred in granting defendants Kulak and Kinsey summary judgment. Under Administrative Code of the City of New York § 27-128, an "owner shall be responsible at all times for the safe maintenance of the building and its facilities." In light of this responsibility, a landlord may be held liable for negligence with respect to the condition of property even after the transfer of possession and control to the tenant where the landlord "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" (Johnson v. Urena Service Center, 227 A.D.2d 325, 642 N.Y.S.2d 897, lv. denied 88 N.Y.2d 814, 651 N.Y.S.2d 16, 673...