HEPBURN v. (and related actions). (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Held, J.), dated May 29, 1998, as, upon an order of the same court dated March 24, 1998, granting the motion of the defendant Shekel Enterprise, Inc., for summary judgment dismissing the complaint insofar as asserted against it and denying that branch of their cross motion which was for summary judgment on the issue of liability as against Shekel Enterprise, Inc., dismissed the complaint insofar as asserted against Shekel Enterprise, Inc.

ORDERED that the judgment is affirmed insofar as appealed from, with costs payable to the respondent.

The plaintiff, an employee of the defendant Twenty Gas, Inc. (hereinafter Twenty Gas), was injured during the course of an armed robbery at a gas station operated by Twenty Gas. He subsequently commenced this action against, among others, the defendant Shekel Enterprise, Inc. (hereinafter Shekel), the owner of the property, alleging that Shekel was negligent in maintaining the premises.   Shekel had entered into a “triple net” lease with Twenty Gas, which provided that Twenty Gas was responsible for, inter alia, repairs to and maintenance of the gas station.   Shekel retained the right to reenter the premises to inspect and repair in the event Twenty Gas failed to fulfill its obligations.

 The Supreme Court properly granted Shekel's motion for summary judgment dismissing the complaint insofar as asserted against it since it was an out-of-possession landowner and was not obligated under the lease to maintain the premises (see, Stark v. Port Auth. of N.Y. and N.J., 224 A.D.2d 681, 682, 639 N.Y.S.2d 57).   The plaintiffs claim that since Shekel had a right to reenter the premises they should be charged with constructive notice of the defective conditions at the gas station because those conditions violated provisions of the New York City Building Code. “Reservation of the right to enter the premises for purposes of inspection and repair may constitute sufficient retention of control to permit a finding that the landlord had constructive notice of a defective condition provided a specific statutory violation exists and there is a significant structural or design defect” (Stark v. Port Auth. of N.Y. and N.J., supra, at 682, 639 N.Y.S.2d 57;  see also, Ahmad v. Getty Petroleum Corp., 217 A.D.2d 600, 601-602, 629 N.Y.S.2d 779).   Here there is no evidence of a specific statutory violation or a structural or design defect.   There was also no evidence that Shekel was involved in the daily operations of the gas station.

MEMORANDUM BY THE COURT.