ECKERS v. H & R Block Eastern Tax Services, Inc., Third-Party Defendant-Respondent.

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

Peggy ECKERS, Appellant, v. Irving I. SUEDE, et al., Defendants Third-Party Plaintiffs-Respondents, H & R Block Eastern Tax Services, Inc., Third-Party Defendant-Respondent.

Decided: May 28, 2002

FRED T. SANTUCCI, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN and SANDRA L. TOWNES, JJ. Edelman, Krasin & Jaye, P.C., (Pollack, Pollack, Isaac & DeCicco, New York, NY, [Brian J. Isaac, James M. Lane, and Julie T. Mark] of counsel), for appellant. Steven G. Fauth, New York, NY, (Susan D. Smodish of counsel), for defendants third-party plaintiffs-respondents. Callan, Koster, Brady & Brennan, LLP, New York, NY, (Michael P. Kandler of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated April 23, 2001, as granted that branch of the motion of the defendants third-party plaintiffs, in which the third-party defendant joined, which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 “It is well settled that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises” (Dalzell v. McDonald's Corp., 220 A.D.2d 638, 639, 632 N.Y.S.2d 635;  see Putnam v. Stout, 38 N.Y.2d 607, 381 N.Y.S.2d 848, 345 N.E.2d 319).   Mere reservation of a right to enter the premises for the purpose of inspection and repair is insufficient to charge the owner or lessor with liability for a subsequently arising dangerous condition unless the defect violates a specific statutory provision and there is a significant structural or design defect (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;  Stark v. Port Auth. of N.Y. and N.J., 224 A.D.2d 681, 639 N.Y.S.2d 57;  Aprea v. Carol Mgt. Corp., 190 A.D.2d 838, 594 N.Y.S.2d 53).

 Here, the lease between the plaintiff's employer, the third-party defendant H & R Block Eastern Tax Services, Inc. (hereinafter H & R Block), and the owners of the premises, the defendants third-party plaintiffs Irving Suede and Marilyn Suede, provided that H & R Block was responsible, at its own expense, for making repairs.   The plaintiff failed to raise a triable issue of fact in opposition to the Suedes' prima facie showing of entitlement to summary judgment.   While the Suedes retained a general right of re-entry, the plaintiff failed to submit evidence that the floor condition over which she tripped constituted a significant structural defect which violated a statutory duty to repair (see Stark v Port Auth. of N.Y. and N.J., supra;  Aprea v. Carol Mgt. Corp., supra;  Lafleur v. Power Test Realty Co., 159 A.D.2d 691, 553 N.Y.S.2d 50;  see generally Guzman v Haven Plaza Hous. Dev. Fund Co., supra).

 Furthermore, since there was no evidence that the Suedes had notice of the plaintiff's accident before they permitted the subsequent tenant to replace the flooring in the premises, the plaintiff's contention that the Suedes engaged in spoliation of the evidence is without merit (see Abenante v. Star Gas Corp., 278 A.D.2d 438, 717 N.Y.S.2d 913;  DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 682 N.Y.S.2d 452;  Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 A.D.2d 564, 674 N.Y.S.2d 769).

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