Opinion
July 26, 1982
In a negligence action to recover damages for personal injuries, etc., defendant Ace Prescription Center, Inc., appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated January 26, 1982, which denied its motion for summary judgment dismissing the complaint as against it. Order reversed, on the law, with one bill of $50 costs and disbursements, motion granted. Plaintiff Jose Garcia was allegedly injured after patronizing the appellant's drugstore, when he fell in a stairway used in common by all the business tenants and their customers. No party disputes the facts that the appellant did not lease the stairwell and did not exercise any control over it. Similarly, there is no dispute concerning the landlord's duty pursuant to the lease to maintain and repair the stairwell. The sole issue on appeal is whether the appellant can be held liable in damages for a failure to warn its customers and to notify the landlord of the defective condition, assuming it was aware of the defect. We think not. Since the appellant exercised no control over the stairwell, it had no duty to warn the injured plaintiff of a defective condition it did not create (see Howe v. Kroger Co., 598 S.W.2d 929 [Tex]; Beaney v. Carlson, 174 Ohio St. 409; Ann., 48 ALR3d 1163). Damiani, J.P., Titone, Weinstein and Bracken, JJ., concur.