JAMES STARR JR INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF STAR LYN STARR AN INFANT PLAINTIFF APPELLANT v. ROGER HOLES DEFENDANT RESPONDENT JOHN LIVELY AND WENDY LIVELY DEFENDANTS

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

JAMES M. STARR, JR., INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF STAR LYN STARR, AN INFANT, PLAINTIFF–APPELLANT, v. ROGER H. HOLES, DEFENDANT–RESPONDENT, JOHN LIVELY AND WENDY LIVELY, DEFENDANTS.

CA 11–00644

Decided: September 30, 2011

PRESENT:  CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ. HOGAN WILLIG, AMHERST (AMANDA L. LOWE OF COUNSEL), FOR PLAINTIFF–APPELLANT. WAGNER & HART, LLP, OLEAN (JANINE C. FODOR OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint against defendant Roger H. Holes is reinstated.

Memorandum:  Plaintiff commenced this action, individually and on behalf of his daughter, seeking damages for burn injuries sustained by his daughter when she fell into a basin of water.   The basin had been placed on a grate covering a floor furnace in an apartment leased to defendants John and Wendy Lively by Roger H. Holes (defendant).   Supreme Court erred in granting defendant's motion seeking summary judgment dismissing the complaint against him.  “While an out-of-possession landlord generally will not be responsible for dangerous conditions existing on leased premises, it is settled that [a] landlord may be liable for failing to repair a dangerous condition, of which [he or she] has notice, on leased premises if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs” (Oates v. Iacovelli, 80 AD3d 1059, 1060 [internal quotation marks omitted] ).   Defendant failed to establish as a matter of law that he lacked control of the premises and thus that he could not be held liable in this case (see Rose v. Niagara Mohawk Power Corp., 298 A.D.2d 834), and his own submissions raise a triable issue of fact whether he had notice of the allegedly dangerous condition (see Finch v. Ryder Truck Rental, Inc., 68 AD3d 1754, 1754–1755).   Defendant also failed to establish that section RM1408 of the applicable Residential Code of New York State does not apply to the subject floor furnace (see Brice v. Vermeulen, 74 AD3d 858), or that the alleged violation of that section was not a proximate cause of the injuries sustained by plaintiff's daughter (see Sanchez v. Irun, 83 AD3d 611, 612).

Patricia L. Morgan

Clerk of the Court