ESPINOSA v. The City of New York, Defendant-Respondent. (1998)

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered May 18, 1998, which denied defendant Tiny Cove Realty's motion for summary judgment dismissing the complaint as against it, unanimously affirmed.

 Plaintiff tenant was allegedly injured due to a cracked step leading down from the sidewalk to the building's doorway, which was below street level.   Under the net lease, plaintiff assumed responsibility for making “all repairs both ordinary and extra-ordinary;  inside;  outside and structural” to the leased premises, defined as “the building known as * * * 738 St. Nicholas Avenue”.   In the absence of a specific statutory violation or a significant structural defect, liability could not be premised solely on the fact that defendant, an out-of-possession landlord, retained the right of reentry (Deebs v. Rich-Mar Realty, 248 A.D.2d 185, 670 N.Y.S.2d 16, 17).  However, defendant's summary judgment motion was properly denied because a question of fact exists as to whether the step leading down from the sidewalk to the door should be considered part of the leased premises or whether it constituted a special use of the public sidewalk by the defendant, who allegedly had notice of its defective condition.

MEMORANDUM DECISION.