SOUMA v. [And a Third–Party Action] (2022)

Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered March 25, 2021, which granted Third Avenue Realty's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on liability, unanimously affirmed, without costs.

The court properly concluded that the stairway where plaintiff fell was part of the demised premises described in the lease because the second floor of the building was accessible exclusively through the stairway, which did not provide access to other parts of the building.

Third Avenue demonstrated that it was an out-of-possession landlord that was not responsible for maintaining the stairway (see Putnam v. Stout, 38 N.Y.2d 607, 617, 381 N.Y.S.2d 848, 345 N.E.2d 319 [1976];  Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 326, 642 N.Y.S.2d 897 [1st Dept. 1996]).  The lease rider at issue expressly stated that the Barbershop was required to make all repairs necessary to keep the demised premises in good condition and in compliance with all regulations.  Although ¶¶ 13 and 50 of the lease stated that Third Avenue had the right to re-enter the demised premises to make repairs, the conditions cited by plaintiff were not significant structural defects such that liability may be imposed on Third Avenue (see Vargas v. Weishaus, 199 A.D.3d 620, 623, 159 N.Y.S.3d 33 [1st Dept. 2021]).  Varying riser heights and tread and handrail violations are insufficient to impose liability on an out-of-possession landlord since they are not structural defects (see Podel v. Glimmer Five, LLC, 117 A.D.3d 579, 580, 987 N.Y.S.2d 17 [1st Dept. 2014], lv denied 24 N.Y.3d 903, 2014 WL 4454940 [2014]).  We decline plaintiff's invitation to overrule our existing authority on this issue.  Moreover, violation of Administrative Code of City of N.Y. § 28–301.1 is not sufficiently specific to impose liability on Third Avenue (see Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 A.D.3d 525, 528, 56 N.Y.S.3d 32 [1st Dept. 2017]).  In any event, Third Avenue did not have exclusive control of the stairway.  The principals of the landlord, Third Avenue, both testified that they did not have keys to the door leading to the stairway and plaintiff testified that the lighting in the stairway was improved after he complained to the owner of Barbershop (see Vargas v. Weishaus, 199 A.D.3d at 623, 159 N.Y.S.3d 33).

The court correctly denied plaintiff's motion despite the absence of testimony rebutting his version of the accident, for the reasons noted above.