Hernandez v. 34 Downing Owners Corp. — 148 A.D.3d 554

Majority

p. 554

Maria Del Carmen Hernandez, Respondent, v 34 Downing Owners Corp., Appellant.

[48 NYS3d 898]

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered October 17, 2016, which denied the motion of defendant building owner for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when a door to the cellar of the restaurant at which she worked, which was located in the sidewalk abutting the building, swung shut and struck her on the head. Pursuant to its lease with nonparty Manhattan Mansions, which leased the commercial area of the building, defendant remained obligated to maintain and repair the cellar stairs and sidewalk. Although an out-of-possession landlord contractually obligated to make repairs may not be held liable unless it created or had notice of the dangerous condition (see Gomez

p. 555

v 192 E. 151st St. Assoc., L.P., 26 AD3d 276 , 277 [1st Dept 2006]; Torres v West St. Realty Co., 21 AD3d 718 , 721 [1st Dept 2005], lv denied 7 NY3d 703 [2006]), here, defendant has failed to establish that it lacked constructive notice of the allegedly defective cellar door or that it did not create the condition.

Concur — Acosta, J.P., Renwick, Manzanet-Daniels, Webber and Gesmer, JJ.

Cases cited

Gomez v. 192 East 151st Street Associates, L.P. 26 AD3d 276 N.Y. App. Div. 2006-02-23 at 277 p. 555
Torres v. West Street Realty Co. 21 AD3d 718 N.Y. App. Div. 2005-09-01 at 721 p. 555