Velazquez v. Tyler Graphics, Ltd.

• Decision Date: 27 April 1995
• Citation: 625 N.Y.S.2d 537,214 A.D.2d 489
• Parties: George VELAZQUEZ, Plaintiff-Respondent, v. TYLER GRAPHICS, LTD., Defendant/Third-Party Plaintiff-Respondent-Appellant. DeSalvo and Wayne, Inc., Third-Party Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 537

625 N.Y.S.2d 537

214 A.D.2d 489

George VELAZQUEZ, Plaintiff-Respondent, v. TYLER GRAPHICS, LTD., Defendant/Third-Party Plaintiff-Respondent-Appellant DeSalvo and Wayne, Inc., Third-Party Defendant-Appellant-Respondent.

Supreme Court, Appellate Division First Department.

April 27, 1995.

M.S. Rothman, for plaintiff-respondent.

E.A. Bannon, for defendant/third-party.

C.L. Schlitt, for third-party defendant.

Before MURPHY, P.J., and ROSENBERGER, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered November 23, 1993, which inter alia, denied the motion by defendant/third-party plaintiff to set aside the verdict as against the weight of the credible evidence and granted the motion by defendant/third-party plaintiff to set aside the apportionment between it and third-party defendant as against the weight of the credible evidence, unanimously reversed, on the law, and the complaint dismissed, without costs. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff, seeking to hold an out-of-possession landlord liable for injuries suffered upon its premises, failed to establish a prima facie case. Generally, an out-of-possession landlord may not be held liable for a third party's injuries on his premises unless he has notice of the defect and has consented to be responsible for maintenance or repair (Manning v. New York Tel. Co., 157 A.D.2d 264, 266-69, 555 N.Y.S.2d 720; see also, Worth Distrs. v. Latham, 59 N.Y.2d 231, 238, 464 N.Y.S.2d 435, 451 N.E.2d 193). However, constructive notice may be found where an out-of-possession landlord reserves a right under the terms of a lease to enter the premises for the purpose of inspection and maintenance or repair and a specific statutory violation exists (Guzman v. Haven Plaza Housing Development Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51; Worth Distrs. v. Latham, supra.; see also, Santiago v. Port Auth. of New York and New Jersey, 203 A.D.2d 217, 611 N.Y.S.2d 174, lv. denied 84 N.Y.2d 807, 621 N.Y.S.2d 516, 645 N.E.2d 1216; Levy v. Daitz, 196 A.D.2d 454, 601 N.Y.S.2d 294). In such case, only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord (Quinones v. 27 Third City King Restaurant, 198 A.D.2d 23, 24, 603 N.Y.S.2d 130; Levy v. Daitz, supra.).

The record indicates that the landlord did not have any actual or constructive notice of the alleged defect nor did it consent to be responsible for its repair. When the accident occurred in September, 1985, the third-party defendant, plaintiff's employer DeSalvo had been a month-to-month holdover tenant since 1979, subject to the terms of the original lease. Defendant purchased the premises in May, 1985, immediately indicating its intention not to become a landlord and immediately giving notice to DeSalvo to vacate, which it refused to do. Defendant immediately commenced eviction proceedings and, pursuant to the advice of counsel, refrained from entering the premises while DeSalvo remained. Although the original lease did provide the landlord a right of reentry, under these circumstances we decline to enforce it against defendant, given their posture towards the tenancy, and the fact that the lease was long-expired and not negotiated by them.

Plaintiff's effort to establish a constructive notice case also fails because the specific statutory safety provision that he alleged to be violated was not a statute but a regulation and, in any case, was not applicable to the circumstances at issue. 9 NYCRR 814.1(f) [now 9 NYCRR 762.1(f) ] is a provision of the State Uniform Fire Prevention and Building Code, regulations enacted pursuant to the Executive Law. Guzman specifically limits its holding to circumstances where a duty is imposed by statute (see Guzman, 69 N.Y.2d at 567 n. 4, 516 N.Y.S.2d 451, 509 N.E.2d 51). In Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29, 217 N.Y.S.2d 25, 176 N.E.2d 53 the Court of Appeals notes:

... the violation of a rule of an administrative body, lacking the force and effect of a substantive legislative enactment, "did not establish negligence per se but was simply some...