Wernig v. Parents and Bros. Two Inc.
| Decision Date | 29 July 1993 |
| Citation | 195 A.D.2d 944,600 N.Y.S.2d 852 |
| Parties | Dennis WERNIG et al., Respondents, v. PARENTS AND BROTHERS TWO INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Taylor, Schimpf & Matalavage (David R. Taylor, of counsel), Albany, for appellant.
Tocci, Parker & Tocci (Dominick Tocci, of counsel), Albany, for respondents.
Before WEISS, P.J., and YESAWICH, LEVINE, MERCURE and MAHONEY, JJ.
Appeal from an order of the Supreme Court (Lynch, J.), entered December 10, 1992 in Schenectady County, which denied defendant's motion for summary judgment dismissing the complaint.
Defendant is the owner of a parcel of property improved with a commercial building which was constructed in 1987 and leased to Lee's Plumbing and Heating Corporation (hereinafter Lee's) and one other commercial establishment during the relevant time period. On November 24, 1989, plaintiff Dennis Wernig (hereinafter plaintiff), an employee of Lee's, slipped and fell on a patch of ice on the property, allegedly caused by water runoff from the roof of the building. Plaintiff brought this action, sounding in negligence, to recover for his injuries; plaintiff's wife claims derivative damages. After issue was joined and examinations before trial held, defendant moved for summary judgment contending, inter alia, that inasmuch as it did not have possession or control of the property at the time of the accident, it owed no duty to plaintiff. Supreme Court denied the motion and defendant appeals.
We affirm. As Supreme Court rightly observed, although a lessor without control or possession of the property usually has no obligation to maintain the premises in a safe condition, such a duty does arise if the lessor leased the property for a public use, with knowledge that a dangerous condition rendered it unsafe for that purpose (see, De Brino v. Benequista & Benequista Realty, 175 A.D.2d 446, 447, 572 N.Y.S.2d 497; Williams v. Saratoga County Agric. Socy., 277 App.Div. 742, 744, 103 N.Y.S.2d 363). The record contains evidence that the area where plaintiff fell--which was on the side of the building, close to a door and a soda machine--was used regularly by delivery persons and customers, and defendant's president does not deny that the soda machine was available for use by the general public. Furthermore, there is some evidence that the accumulation of ice on the sidewalk was caused by the lack of roof gutters on the side of the building; defendant's president admits that this deficiency was present from the time the building was constructed and that he knew there was runoff onto the sidewalk below. This raises a question of fact with regard to whether the accident was caused by a defect which was or should have been apparent to defendant at the time that the building was leased (see, Brady v. Cocozzo, 174 A.D.2d 814, 815, 570 N.Y.S.2d 748).
Defendant next argues that because...
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Len v. State
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