ALONZO v. McDONALD CORPORATION (2001)

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about February 1, 2000, which, in an action for personal injuries sustained by an employee of defendant franchisor's franchisee, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed since defendant, an out-of-possession landlord, cannot be held liable for injuries caused by a defective condition on its premises absent evidence that it had agreed to be responsible for maintenance or repair (see, Pappalardo v. New York Health & Racquet Club, 279 A.D.2d 134, 718 N.Y.S.2d 287, 292;  Velazquez v. Tyler Graphics, 214 A.D.2d 489, 625 N.Y.S.2d 537).   The documentary evidence submitted on the motion, namely, defendant's franchise, license and lease agreements with plaintiff's employer, clearly establish that plaintiff's employer was to be solely responsible for the maintenance, repair and Code compliance of the premises and for any personal injuries sustained thereon, and that defendant did not reserve a right of reentry for the purpose of inspection and making repairs such as might warrant a finding that it had consented to be responsible for making repairs (see, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51).   We reject plaintiff's argument that such consent can be found in the lease provision giving defendant the option of performing any lease obligations not performed by plaintiff's employer (cf., Dalzell v. McDonald's Corp., 220 A.D.2d 638, 632 N.Y.S.2d 635, lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 17, 673 N.E.2d 1244;   Schoenwandt v. Jamfro Corp., 261 A.D.2d 117, 689 N.Y.S.2d 461).