Opinion
February 2, 1987
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the order is affirmed, with costs.
In its third-party complaint, the subtenant of a movie theater, Walker Theatre, Inc. (hereinafter Walker), seeks indemnification against 18th Avenue-64th Street Corporation (hereinafter the owner), and its tenant, U.A. Eastern Theatres, Inc. (hereinafter the tenant), in an action brought by the plaintiff to recover damages for injuries to his hand sustained when he was struck by the glass portion of the theatre's lobby door. Included among the allegations of negligence in the plaintiff's bill of particulars were claims that the door was neither constructed of shatter-proof glass nor properly marked, i.e., that Walker "fail[ed] to warn of the hazards and dangers attendant to the use of a door".
The net lease on the subject theatre, the terms of which were incorporated in the sublease, contained a reservation of the right "to enter * * * upon the demised premises for the purpose (at its option) of complying with and executing any law, rule, order, violation, regulation or ordinance" as well as indemnification and hold harmless provisions, pursuant to which the owner and the tenant assert that they are entitled to summary judgment dismissing the third-party complaint.
We disagree. Where an owner out of possession reserves a right under the terms of a net lease to enter upon the premises for purposes of inspecting the same and making certain repairs thereon, the reservation may be deemed to constitute a sufficient retention of control and to have provided the owner with constructive notice of the defective condition so as to subject the owner to liability (see, Worth Distribs. v Latham, 59 N.Y.2d 231, 238; Appel v. Muller, 262 N.Y. 278, 282-284; O'Neil v. Port Auth., 111 A.D.2d 375, 377). The existence of factual issues with respect to the owner's and tenant's alleged compliance with certain Industrial Code regulations governing the construction and marking of glass doors utilized in mercantile establishments (see, 12 NYCRR 47.6, 47.7, 47.11), which would constitute evidence of negligence (see, Feisthamel v. State of New York, 89 A.D.2d 756), precludes the granting of their motions for summary judgment (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851). The owner and tenant are not entitled to be automatically exonerated from liability, the indemnification and hold harmless provisions of the leases notwithstanding, since the exemption of a lessor from liability for his own acts of negligence is specifically prohibited by General Obligations Law § 5-321 (see, Graphic Arts Supply v. Raynor, 91 A.D.2d 827).
Finally, the court properly denied the tenant's request for a severance of the third-party actions in the absence of a showing that it would either further "convenience" or "avoid prejudice" (CPLR 603). Niehoff, J.P., Rubin, Lawrence and Sullivan, JJ., concur.