GERBER v. Mobil Oil Corporation, et al., Defendants-Appellants. (2003)

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 plaintiff's 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 N.Y. 446, 448-449, 167 N.E. 582).