ORTIZ v. RVC REALTY CO

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

Nancy ORTIZ, et al., Appellants, v. RVC REALTY CO., et al., Respondents.

Decided: September 21, 1998

Before ROSENBLATT, J.P., SULLIVAN, JOY, ALTMAN and LUCIANO, JJ. Mahon & Berger, Garden City, N.Y. (Georgia Deplas of counsel), for appellants. Alio, Ronan, McDonnell and Kehoe, Melville, N.Y. (Margaret L. Pezzino of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an (1) order of the Supreme Court, Nassau County (Alpert, J.), dated September 24, 1997, which granted the defendants' motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated March 16, 1998, which denied their motion, in effect, for reargument.

ORDERED that the appeal from the order dated March 16, 1998, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated September 24, 1997, is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 The plaintiff Nancy Ortiz allegedly sustained physical injuries when she tripped and fell over improperly-carpeted stairs on premises owned by the defendant RVC Realty Co. and leased to All Island Lease A Car, Inc., an affiliate of her employer.   An out-of-possession landlord is not liable for injuries sustained by third parties on the leased premises after possession has been transferred to the tenant, unless the landlord has covenanted to maintain or repair the premises (see, Putnam v. Stout, 38 N.Y.2d 607, 618, 381 N.Y.S.2d 848, 345 N.E.2d 319;  Felder v. Wank, 227 A.D.2d 442, 642 N.Y.S.2d 695;  Bettis v. County of Nassau, 212 A.D.2d 749, 623 N.Y.S.2d 294).  Furthermore, in the absence of a duty imposed by statute, a landlord's mere reservation of a right to enter a leased premises to make repairs is insufficient to give rise to liability for a subsequently arising dangerous condition (see, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51;  Chrisostomides v. Berjas Realty Co., 231 A.D.2d 601, 602, 647 N.Y.S.2d 973;  Aprea v. Carol Mgt. Corp., 190 A.D.2d 838, 594 N.Y.S.2d 53).

 In support of their motion for summary judgment, the defendants established that under the subject lease the landlord had no duty to maintain or repair the premises.   In an attempt to defeat the defendants' motion for summary judgment, the plaintiffs argued that the demised premises were in violation of the Code of the Village of Hempstead and that the landlord had reserved a right to reenter the premises and make repairs.   However, the provisions of the Village of Hempstead Code § 78-7, upon which the plaintiffs rely, are nonspecific and reflect only the general duty to maintain the premises.   As such, the landlord cannot be held liable (see, Caiazzo v. Angelone, 236 A.D.2d 351, 653 N.Y.S.2d 644;  DiRende v. Cipollaro, 234 A.D.2d 78, 650 N.Y.S.2d 695;  Kilimnik v. Mirage Rest., 223 A.D.2d 530, 635 N.Y.S.2d 702;  Henderson v. Hickory Pit Rest., 221 A.D.2d 161, 633 N.Y.S.2d 31;  Levy v. Daitz, 196 A.D.2d 454, 601 N.Y.S.2d 294;  Aprea v. Carol Mgt. Corp., supra;  Manning v. New York Tel. Co., 157 A.D.2d 264, 555 N.Y.S.2d 720).

MEMORANDUM BY THE COURT.

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