ALMANZAR v. Biloxi Real Estate Corp., et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Pedro ALMANZAR, Plaintiff-Appellant, v. PICASSO'S CLOTHING INC., Defendant, Biloxi Real Estate Corp., et al., Defendants-Respondents.

Decided: March 27, 2001

NARDELLI, J.P., ANDRIAS, WALLACH, LERNER and RUBIN, JJ. Raymond B. Schwartzberg, for Plaintiff-Appellant. Kenneth J. Kutner, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 18, 1999, which granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff asserts that while shopping at a clothing store located on premises owned by defendants-respondents out-of-possession landlords, he sustained personal injuries when he tripped over a fish bowl filled with water, causing him to tumble through an open trap door and fall down stairs leading to the basement.   Acknowledging that the placement of the bowl on the floor near the open trap door and the basement staircase was negligence on the part of the store only, plaintiff argues that the open trap door was a significant structural defect of which defendants had constructive notice by reason of their right to reenter the store for purposes of inspection and repair, and a contributing cause of the accident.   The argument is without merit in the absence of evidence showing that the trap door was normally kept open for structural reasons.   All that appears is that the door was unsafe because improperly kept open by the store.   Nor can defendants be held liable for a failure to provide other safeguards (see, Brown v. Weinreb, 183 A.D.2d 562, 583 N.Y.S.2d 460;  Wisznic v. Nostrand Shoppers, 215 A.D.2d 553, 626 N.Y.S.2d 837).