MARIE v. [And a Third–Party Action] (2018)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about March 13, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff slipped and fell on a staircase located on the grounds of premises owned by defendant church and leased to plaintiff's employer, third-party defendant.  Defendant demonstrated that, at the time of plaintiff's accident, it was an out-of-possession landowner with no contractual obligation to make repairs.  The lease also allowed defendant to use a designated space for morning services, but defendant demonstrated that it had ceased using the space at least two years before the accident and had no key or code access to the premises (see Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 A.D.3d 525, 527, 56 N.Y.S.3d 32 [1st Dept. 2017] ).

As an out-of-possession landlord with a reserved right to enter to make repairs, even if defendant had constructive notice of a defective condition on the staircase, it could only be found liable if the defect that caused plaintiff's accident was “a significant structural or design defect that was contrary to a specific statutory safety provision” (Devlin v. Blaggards III Rest. Corp., 80 A.D.3d 497, 497–498, 916 N.Y.S.2d 580 [1st Dept. 2011], lv denied 16 N.Y.3d 713, 924 N.Y.S.2d 322, 948 N.E.2d 929 [2011];  see Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [1st Dept. 2010] ).  While plaintiff alleged that the absence of a center railing on the staircase violated the 1938 Building Code, defendant submitted evidence establishing that the building and staircase were built between 1916 and 1917, so that the 1938 Code does not apply.  The other alleged defects in the staircase do not constitute significant structural defects (see e.g. Podel v. Glimmer Five, LLC, 117 A.D.3d 579, 987 N.Y.S.2d 17 [1st Dept. 2014], lv denied 24 N.Y.3d 903, 995 N.Y.S.2d 711, 20 N.E.3d 657 [2014] ).