TAYLOR v. Robert From, et al., Third-Party Defendants-Respondents.

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

Odelia TAYLOR, Appellant, v. PARK TOWERS SOUTH CO., Defendant Third-Party Plaintiff-Respondent, Wavecrest Properties, Inc., Defendant-Respondent; Robert From, et al., Third-Party Defendants-Respondents.

Decided: April 22, 2002

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, and BARRY A. COZIER, JJ. Cheryl Kitton, Bellmore, NY, (Kevin J. Bauer, Albany, N.Y. of counsel), for appellant. Thomas D. Hughes, New York, NY, (Richard C. Rubinstein of counsel), for defendant third-party plaintiff-respondent, defendant-respondent, and third-party defendants-respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Jackson, J.), dated September 27, 2000, which upon the granting of the defendants' motion pursuant to CPLR 4401 made at the close of the plaintiff's case for judgment as a matter of law on the ground that the plaintiff failed to prove a prima facie case, dismissed the complaint and the third-party complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff was injured when a paper towel dispenser she was using fell and struck her arm, causing her to fall to the floor.   The accident occurred in the office leased by the third-party defendant dentists, in a building allegedly owned by the defendants Park Towers South Co. (hereinafter PTS) and Wavecrest Properties, Inc. Alleging negligent maintenance of the dispenser, the plaintiff commenced this action against the defendants.   At the close of the plaintiff's case, the defendants successfully moved for judgment as a matter of law and dismissal of the complaint.   The plaintiff appeals.   We affirm.

 Generally, a landlord may be held liable for injuries caused by a defective condition on leased premises when the landlord is statutorily or contractually obligated to maintain the premises and reserves a right to re-enter for inspection or repair (see Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642, 649 N.Y.S.2d 115, 672 N.E.2d 135;  Dufficy v. Wharf Bar & Grill, 217 A.D.2d 646, 629 N.Y.S.2d 808).   Here, the defendants retained the right to re-enter the demised premises, but were not obligated by the lease to maintain them.   Moreover, the statutory provisions upon which the plaintiff relies are inapposite.   Administrative Code of the City of New York § 27-128 is unavailing because it imposes only a general duty to maintain the premises, and the alleged defect was not structural in nature (see Lane v. Fisher Park Lane Co., 276 A.D.2d 136, 141-142, 718 N.Y.S.2d 276;  Ortiz v. RVC Realty Co., 253 A.D.2d 802, 803, 677 N.Y.S.2d 598;  Beck v. Woodward Affiliates, 226 A.D.2d 328, 330, 640 N.Y.S.2d 205).   Multiple Dwelling Law § 78 is also inapplicable because there was no evidence that the building was in disrepair (see Kowalski v. Johnson, 247 A.D.2d 514, 669 N.Y.S.2d 319;  Mercado v. Slope Assocs., 246 A.D.2d 581, 667 N.Y.S.2d 289).   The defendants also cannot be held liable for the purported and allegedly negligent installation of the dispenser by an employee of PTS, since the record established that, even if the employee had installed the dispenser, such installation would be outside the scope of his employment (see Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 119, 643 N.Y.S.2d 511, 666 N.E.2d 216;  Johnson v. Daily News, 34 N.Y.2d 33, 356 N.Y.S.2d 1, 312 N.E.2d 148;  Rausman v. Baugh, 248 A.D.2d 8, 682 N.Y.S.2d 42).   Since there was “no rational process by which the fact trier could base a finding in favor of the [plaintiff],” the Supreme Court properly granted the defendants judgment as a matter of law (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346).

In light of our determination, we need not reach the plaintiff's remaining contentions.

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