GILMARTIN v. TEMPESTOSO (2000)

Michael J. Gilmartin (plaintiff) was injured when he allegedly slipped and fell on a layer of ice on an exterior staircase of a building owned by Ulderico Tempestoso and Antonio Ciccotelli (defendants).   Supreme Court properly denied the motion of defendants for summary judgment dismissing the complaint against them.   In support of the motion, defendants submitted deposition testimony in which they each testified that they had orally informed the tenants that the tenants were responsible for ice and snow removal but that no such provision is contained in the one-page lease.   In addition, Tempestoso testified that he visited the premises five or six times a month to collect rent and to ascertain that their rules were being followed.   Contrary to the contention of defendants, they failed to meet their initial burden of establishing as a matter of law that they are out-of-possession landlords with no control over the premises and thus are not liable for the allegedly dangerous condition of the premises (see, Cherubini v. Testa, 130 A.D.2d 380, 382, 515 N.Y.S.2d 29;  cf., Carvano v. Morgan, 270 A.D.2d 222, 703 N.Y.S.2d 534;  see also, Young v. Moran Props., 259 A.D.2d 1037, 1038, 688 N.Y.S.2d 354).

Also contrary to the contention of defendants, they failed to meet their initial burden of establishing as a matter of law that they had no constructive notice of the allegedly dangerous condition (see, Mikolajczyk v. M.C. Morgan Contrs., 273 A.D.2d 864, 709 N.Y.S.2d 283 [decided herewith];  Laster v. Port Auth. of N.Y. & N. J., 251 A.D.2d 204, 205, 676 N.Y.S.2d 539, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763) or that they had no duty to clear the ice because there was a snowstorm in progress when plaintiff fell (see, Cerra v. Perk Dev., 197 A.D.2d 851, 602 N.Y.S.2d 277).

Order unanimously affirmed without costs.

MEMORANDUM: