Sullivan v. Specialty Glass Corp.

• Decision Date: 29 July 1996
• Citation: 229 A.D.2d 572,646 N.Y.S.2d 36
• Parties: Daniel J. SULLIVAN, et al., Appellants, v. SPECIALTY GLASS CORPORATION, Defendant, Sid's Lumber and Home Improvement Company, Inc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 36

646 N.Y.S.2d 36

229 A.D.2d 572

Daniel J. SULLIVAN, et al., Appellants, v. SPECIALTY GLASS CORPORATION, Defendant Sid's Lumber and Home Improvement Company, Inc., Respondent.

Supreme Court, Appellate Division Second Department.

July 29, 1996.

Dienst & Serrins, New York City (Marc Bengualid, of counsel), for appellants.

Moore & Lafferty, New York City (Michael Majewski, of counsel; Nicole Norris, on the brief), for respondent.

Before ROSENBLATT, J.P., and SANTUCCI, JOY and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated June 20, 1995, which granted the motion of the defendant Sid's Hardware & Home Center Corporation (sued herein as Sid's Lumber & Home Improvement Company, Inc.) for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff Daniel J. Sullivan was injured while descending an outdoor staircase on a building owned by the defendant Specialty Glass Corporation and leased, in part, by the defendant Sid's Hardware & Home Center Corporation (hereinafter Sid's Hardware). The Supreme Court granted the motion of Sid's Hardware for summary judgment dismissing the complaint insofar as asserted against it. We affirm.

An owner or tenant in possession of real property owes a duty of reasonable care to maintain the property in a safe condition (see, Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). The determinative question is one of possession or control (see, McGill v. Caldors, Inc., 135 A.D.2d 1041, 522 N.Y.S.2d 976). Here, in support of its motion for summary judgment, the tenant Sid's Hardware demonstrated that the store could not be reached by use of the staircase and that neither the owner nor the employees of the store used the staircase. In addition, in the parties' lease, the landlord specifically retained the obligation to maintain in good condition the external portions of the building, including the staircase (see, Garcia v. Arbern Realty Co., 89 A.D.2d 616, 452 N.Y.S.2d 665). In opposition to the motion, the plaintiffs failed to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Accordingly, the motion for summary judgment was properly granted.

We have...