Carol v. Hickory Pit Restaurant — 221 A.D.2d 161

Majority

p. 161

Carol Henderson, Appellant, v Hickory Pit Restaurant et al., Respondents.

[633 NYS2d 31]

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about April 18, 1994, which granted defendant G.S.L. Enterprises, Inc.’s motion and defendant Hickory Pit Restaurant’s cross motion for summary judgment dismissing the complaint and cross claims, unanimously modified, on the law, to deny Hickory Pit Restaurant’s cross motion and to reinstate the complaint against it, and otherwise affirmed, without costs.

Plaintiff alleged that she was injured when she slipped and fell on rotten vegetables on the sidewalk in front of the Hickory Pit Restaurant, whose premises were owned by G.S.L. Enterprises, Inc. Summary judgment was properly awarded to G.S.L. Enterprises, Inc. The right of reentry to inspect and make repairs retained by the out-of-possession landlord did not render it responsible for the general maintenance of the premises. That was the sole responsibility of Hickory Pit. The defect complained of did not involve significant structural and/or design defects or violate specific Administrative Code provisions which the landlord could have had the opportunity to discover and cure (see, Manning v New York Tel. Co., 157 AD2d 264 , 269-270, distinguishing Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 ; see also, Brooks v Dupont Assocs., 164 AD2d 847 ).

p. 162

However, the court erred in granting Hickory Pit Restaurant’s cross motion for summary judgment. Plaintiff raised material issues of fact as to this defendant’s liability by introducing circumstantial evidence tending to show that the restaurant was responsible for the creation of the dangerous condition (see, Negri v Stop & Shop, 65 NY2d 625 ; Giambrone v New York Yankees, 181 AD2d 547 ; Brito v Manhattan & Bronx Surface Tr, Operating Auth., 188 AD2d 253 , 254, appeal dismissed 81 NY2d 993 ). .The issue of Hickory Pit’s liability should be left for a jury to resolve (see, Ugarriza v Schmieder, 46 NY2d 471 , 474). Concur—Ellerin, J. P., Wallach, Nardelli and Mazzarelli, JJ.

Cases cited

Manning v. New York Telephone Co. 157 AD2d 264 N.Y. App. Div. 1990-05-17 at 269-270 p. 161
Guzman v. Haven Plaza Housing Development Fund Co. 69 NY2d 559 N.Y. 1987-05-05 p. 161
Brooks v. Dupont Associates, Inc. 164 AD2d 847 N.Y. App. Div. 1990-08-30 p. 161
Brito v. Manhattan & Bronx Surface Transit Operating Authority 188 AD2d 253 N.Y. App. Div. 1992-12-01 at 254 p. 162
Ugarriza v. Schmieder 46 NY2d 471 N.Y. 1979-02-13 at 474 p. 162