BETANCOURT v. Kessler Realty Holdings, Inc., et al., Defendants. (2024)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 30, 2023, which, to the extent appealed from, upon renewal, denied the motion of defendant Burnside Mews Associates, L.P. (Burnside) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The court providently exercised its discretion in granting renewal (see Mejia v. Nanni, 307 A.D.2d 870, 871, 763 N.Y.S.2d 611 [1st Dept. 2003]).  However, upon renewal, the court should have granted Burnside summary judgment.

The lease made the tenant “responsible for the entire operation, management, maintenance and control of the ․ premises ․ except as otherwise provided.”  Burnside's maintenance responsibility was limited to repair of the facade, sidewalk, roof, and brick work.  The parties’ course of conduct was consistent with this division of responsibility, as Burnside submitted testimony showing that it had engaged work for the building's facade but not the interior.  Accordingly, we find that Burnside was an out-of-possession landlord, even though it retained the right to enter the premises (see e.g. Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 420, 927 N.Y.S.2d 49 [1st Dept. 2011];  see also Desosa v. Ortiz–Osorio, 227 A.D.3d 461, 461, 208 N.Y.S.3d 617 [1st Dept. 2024]).  (Gronski v. County of Monroe, 18 N.Y.3d 374, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011]), upon which plaintiff relies, is distinguishable because the owner there maintained a greater degree of control than Burnside did here.

As an out-of-possession landlord, Burnside “cannot be held liable under a theory of constructive notice in the absence of a significant structural or design defect that is contrary to a specific statutory safety provision” (Torres v. West St. Realty Co., 21 A.D.3d 718, 721, 800 N.Y.S.2d 683 [1st Dept. 2005], lv denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] [internal quotation marks omitted]).  Plaintiff's expert failed to identify a violation of any applicable safety provision that proximately caused the accident.