KRAMER v. RCQ FD LLC (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered August 31, 2022, which granted the motion of defendant Bailey Restaurant Group, Inc. d/b/a The Bailey (The Bailey) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff alleges that she was exiting The Bailey through its revolving door when she fell and was injured because of the sudden drop in elevation between the door and the sidewalk.  The revolving door was on a landing approximately six inches above the sidewalk.  The Bailey established entitlement to summary judgment by demonstrating that it did not have a duty to plaintiff with respect to the alleged defective condition of the revolving door (see Collado v. Cruz, 81 A.D.3d 542, 542, 917 N.Y.S.2d 178 [1st Dept. 2011];  Futter v. Hewlett Sta. Yogurt, Inc., 149 A.D.3d 912, 914, 52 N.Y.S.3d 432 [2d Dept. 2017]).  The Bailey's lease with the owner of the premises, defendant RCQ Hotel FD, LLC, RCQ Hotel Operator FD, LLC, included only that portion of the revolving door that was within the building itself, and it did not include the step on which plaintiff fell (see e.g. id.;  cf.  Reyes v. Morton Williams Associated Supermarkets, Inc., 50 A.D.3d 496, 858 N.Y.S.2d 107 [1st Dept. 2008]).  Under the lease, The Bailey is responsible for “tak[ing] good care of” and “mak[ing] all non-structural repairs” to the leased premises, including “the exterior and interior of all windows, plate glass, doors, door frames and bucks.”  Further, the president of The Bailey testified that it was only responsible for the general cleaning of the revolving door and ensuring that it remained free of obstructions.  It is undisputed that The Bailey made no structural changes or repairs to the step off the revolving door, which allegedly caused plaintiff's accident.

Appellants’ claim that The Bailey assumed a duty to warn of the defective condition is unavailing, as the “watch your step” warning stickers on the revolving door were placed there before The Bailey occupied the premises.  Moreover, plaintiff admitted that she did not see the warning stickers before her fall, so she cannot claim that she relied on The Bailey's “gratuitous conduct” to her detriment (see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451 [1980];  see also McIntosh v. Moscrip, 138 A.D.2d 781, 525 N.Y.S.2d 420 [3d Dept. 1988]).