Ritto v. Goldberg

• Decision Date: 19 November 1970
• Citation: Ritto v. Goldberg, 27 N.Y.2d 887, 317 N.Y.S.2d 361 (N.Y. 1970)
• Parties: , 265 N.E.2d 772 Virginia RITTO et al., Respondents, v. Molly GOLDBERG, as Executrix of Lewis Goldberg, Doing Business as 775 Realty Co., Appellant, and Washing Machine Clinic et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 361

317 N.Y.S.2d 361

27 N.Y.2d 887, 265 N.E.2d 772

Virginia RITTO et al., Respondents, v. Molly GOLDBERG, as Executrix of Lewis Goldberg, Doing Business as 775 Realty Co., Appellant, and Washing Machine Clinic et al., Appellants-Respondents.

Court of Appeals of New York.

Nov. 19, 1970.

William F. McNulty, New York City, for appellant.

I. Sidney Worthman, New York City, for appellants-respondents.

Herbert W. North, for respondents.

PER CURIAM.

By leasing a specific room in the premises to defendants, doing business as H. B. H. Metered Machine Co., to conduct an automatic washing machine business, the landlord surrendered the right of occupancy of the demised premises to the tenants and reserved no control over the instruments used by those tenants in their business.

The lease, in terms, gave the lessees 'exclusive use of the aforementioned room' except for access to utility meters. Title to the washing machines remained with the lessees who could remove them 'at the expiration of this lease'.

The provisions of section 78 of the Multiple Dwelling Law, Consol.Laws, c. 61--A. did not impose a statutory duty on the landlord to keep in repair the tenants' washing machines, used in the tenants' business in the leased premises. The reservation of access to utility meters gave no control to the landlord over washing machines owned by the tenants.

The submission to the jury of liability of the landlord solely on the basis of the statutory provisions was not justified by the record and there was due exception taken by the landlord.

It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property (Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59, 248 N.E.2d 896; Kurek v. Port Chester Housing Auth., 18 N.Y.2d 450, 276 N.Y.S.2d 612, 223 N.E.2d 25; De Clara v. Barber S.S. Lines, 309 N.Y. 620, 132 N.E.2d 871; cf. Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397; Fleming v. Oppel, 254 App.Div. 740, 3 N.Y.S.2d 971).

There is proof, however, from which a jury might determine that the landlord, by a long course of conduct of his employees in reporting malfunctions of the machines to the repair service and the owner, so intervened in the operation of the business as to give rise to a reliance by residential tenants in the building on reports of malfunction being made by the landlord. Hence a liability might result if reports were not made and this played an effective part in the occurrence of the accident.

Although this theory was discussed by the Trial Judge in another context (liability over), it was not submitted to the jury whose finding against the landlord under the court's charge could only have been based on violation of a statutory duty. Thus there should be a new trial in the action against Mrs. Goldberg, the executrix of the landlord.

The trial court and the Appellate Division properly dismissed the landlord's third-party complaints against defendants H. B. H. Metered Machine Co., the lessee, and Washing Machine Clinic, the repair service, on the ground that the hegligence of the landlord, if found, would be active negligence for which liability over...