Gerber v. West Hempstead Convenience, Inc.

Order, Supreme Court, New York County (Edward Lehner, J.), entered April 30, 2003, which, in an action for personal injuries sustained on premises operated by defendant as a gasoline station and “mini-mart” pursuant to a lease and franchise agreement with defendants-appellants, denied appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Issues of fact exist as to whether appellants are out-of-possession landlords who relinquished supervisory control over franchisee/lessee’s operation of the mini-mart where plaintiff fell, allegedly because of a missing floor tile. Such issues are raised by evidence that appellants had the right to enter and inspect the mini-mart at all reasonable times to ensure compliance with franchise standards, and exercised that right regularly and rigorously. Indeed, one of appellants’ inspectors testified that if she had seen a missing floor tile at the entrance of the mini-mart, as alleged, she would have made a note of it and required the franchisee/lessee to fix it. There is even evidence tending to show that the inspector did make such a note. In addition, even if appellants were out-of-possession landlords, they are subject to liability for plaintiffs injuries if it is determined that they rented the premises with a dangerous condition and knew or should have known of the condition (see Campbell v Elsie S. Holding Co., 251 NY 446 , 448-449 [1929]). Concur— Nardelli, J.E, Saxe, Friedman, Marlow and Gonzalez, JJ.