ZAPPEL v. PORT AUTHORITY OF NEW YORK (2001)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered December 17, 1999, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.   Appeal from order, same court and Justice, entered May 4, 2000, which denied plaintiff's motion for “renewal/reargument,” unanimously dismissed, without costs, as taken from a nonappealable paper.

This action arose as a result of plaintiff's injuries allegedly suffered when, in the course of his employment at a retail clothing outlet located on the World Trade Center Concourse, he tripped and fell down a stairway due to alleged failure of out-of-possession landlord-defendant Port Authority to properly maintain and repair the adjacent flooring and handrails.   We find that the motion court erred in dismissing the complaint.

 Plaintiff correctly asserts that the lease agreement raises triable issues of fact as to the degree of control that Port Authority retained over the premises.   The record further supports the existence of such factual issues in that the parties' additional evidentiary submissions conflict as to whether the Port Authority had actual notice of the defective conditions and as to the extent of its responsibility for maintenance and repair.

The decisions cited by defendant, in support of the contention that its status as an out-of-possession landlord is unaffected by the right of re-entry provided by the lease, either never addressed the issue or are factually distinguishable from the case at bar [cf., e.g., Laster v. Port Auth. of New York and New Jersey, 251 A.D.2d 204, 676 N.Y.S.2d 539, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763;  D'Orlando v. Port Auth. of New York and New Jersey, 250 A.D.2d 805, 674 N.Y.S.2d 382;  Stark v. Port Auth. of New York and New Jersey, 224 A.D.2d 681, 639 N.Y.S.2d 57;  Santiago v. Port Auth. of New York and New Jersey, 203 A.D.2d 217, 611 N.Y.S.2d 174, lv. denied 84 N.Y.2d 807, 621 N.Y.S.2d 516, 645 N.E.2d 1216;  Love v. Port Auth. of New York and New Jersey, 168 A.D.2d 222, 562 N.Y.S.2d 110].

 Though denominated a motion for “renewal/reargument,” plaintiff's motion was for reargument, since it failed to present any new evidence in support of renewal (see, Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 lv. denied in part, lv. dismissed in part 80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812);  thus its denial is not appealable (Grogan v. City of New York, 259 A.D.2d 240, 244, 699 N.Y.S.2d 12).