From Casetext: Smarter Legal Research

Ritto v. Goldberg

Court of Appeals of the State of New York
Nov 19, 1970
27 N.Y.2d 887 (N.Y. 1970)

Summary

holding that a landlord may be held liable absent a contractual obligation if, by a long course of conduct of repairs, the landlord "so intervened in the operation of the business as to give rise to a reliance by . . . tenants."

Summary of this case from Singh v. Nalpak 1196 Co.

Opinion

Argued October 7, 1970

Decided November 19, 1970

Appeal from the Supreme Court, Bronx County.

William F. McNulty for appellant.

I. Sidney Worthman for appellants-respondents.

Herbert W. North for respondents.


By leasing a specific room in the premises to defendants, doing business as H.B.H. Metered Machine Co., to conduct an automatic washing machine business, the landlord surrendered the right of occupancy of the demised premises to the tenants and reserved no control over the instruments used by those tenants in their business.

The lease, in terms, gave the lessees "exclusive use of the aforementioned room" except for access to utility meters. Title to the washing machines remained with the lessees who could remove them "at the expiration of this lease".

The provisions of section 78 of the Multiple Dwelling Law did not impose a statutory duty on the landlord to keep in repair the tenants' washing machines, used in the tenants' business in the leased premises. The reservation of access to utility meters gave no control to the landlord over washing machines owned by the tenants.

The submission to the jury of liability of the landlord solely on the basis of the statutory provisions was not justified by the record and there was due exception taken by the landlord.

It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property ( Roark v. Hunting, 24 N.Y.2d 470; Kurek v. Port Chester Housing Auth., 18 N.Y.2d 450; De Clara v. Barber S.S. Lines, 309 N.Y. 620; cf. Cullings v. Goetz, 256 N.Y. 287; Fleming v. Oppel, 254 App. Div. 740).

There is proof, however, from which a jury might determine that the landlord, by a long course of conduct of his employees in reporting malfunctions of the machines to the repair service and the owner, so intervened in the operation of the business as to give rise to a reliance by residential tenants in the building on reports of malfunction being made by the landlord. Hence a liability might result if reports were not made and this played an effective part in the occurrence of the accident.

Although this theory was discussed by the Trial Judge in another context (liability over), it was not submitted to the jury whose finding against the landlord under the court's charge could only have been based on violation of a statutory duty. Thus there should be a new trial in the action against Mrs. Goldberg, the executrix of the landlord.

The trial court and the Appellate Division properly dismissed the landlord's third-party complaints against defendants H.B.H. Metered Machine Co., the lessee, and Washing Machine Clinic, the repair service, on the ground that the negligence of the landlord, if found, would be active negligence for which liability over would not be permissible.

Although the appeals of H.B.H. Metered Machine Co. and Washing Machine Clinic have been argued, the court has not acquired jurisdiction under CPLR 5601 (subd. [a], par. [i]), effective September 2, 1969.

The dissent in the Appellate Division (order, October 30, 1969) was only as to appellant Goldberg and not as to other defendants. The kind of dissent which gives rise to jurisdiction by this court is one "in favor of the party taking the appeal" (CPLR 5601, subd. [a], par. [i]).

The prior motion by plaintiffs to dismiss those appeals, which was denied ( 26 N.Y.2d 966), was limited to the timeliness of the appeals. These appeals should be dismissed for absence of jurisdiction.

On appellant Goldberg's appeal, the judgment should be modified by reversing so much thereof as is in favor of plaintiffs against said appellant and granting a new trial, with costs to abide the event, and, as so modified, affirmed.

The appeals by H.B.H. Metered Machine Co. and Washing Machine Clinic should be dismissed, without costs.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BRIETEL, JASEN and GIBSON concur in Per Curiam opinion.

Judgment accordingly.


Summaries of

Ritto v. Goldberg

Court of Appeals of the State of New York
Nov 19, 1970
27 N.Y.2d 887 (N.Y. 1970)

holding that a landlord may be held liable absent a contractual obligation if, by a long course of conduct of repairs, the landlord "so intervened in the operation of the business as to give rise to a reliance by . . . tenants."

Summary of this case from Singh v. Nalpak 1196 Co.

In Ritto, the fact that residential tenants came to rely on reports of washing machines' malfunctioning being made by the landlord's employees raised a question as to the landlord's exercise of control over the premises, despite the presumptive transfer of control accomplished by the leasehold between the landlord and the commercial tenants (see 27 N.Y.2d at 889, 317 N.Y.S.2d 361, 265 N.E.2d 772). Ritto, however, did not establish reliance on the landowner's conduct as a distinct element of the control analysis to be required in all cases going forward, especially where, as here, no leasehold exists.

Summary of this case from Gronski v. Cnty. of Monroe

In Ritto, we applied this standard and concluded that, despite a lease that transferred possession and control to commercial tenants, the issue of whether the landlord actually exercised control over the premises was one for the jury (see id. at 888–889, 317 N.Y.S.2d 361, 265 N.E.2d 772).

Summary of this case from Gronski v. Cnty. of Monroe

In Ritto v Goldberg (27 N.Y.2d 887, 889), the Court of Appeals, in discussing the responsibilities of landlords stated: "It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property". Control of the premises may be established by proof of the landlord's promise, either written or otherwise, to keep certain premises in repair (see, Putnam v Stout, 38 N.Y.2d 607), or by a course of conduct demonstrating that the landlord has assumed responsibility to maintain a particular portion of the premises (Cherubini v Testa, 130 A.D.2d 380).

Summary of this case from Gelardo v. ASMA Realty Corp.

In Ritto v Goldberg (27 N.Y.2d 887, 889) it was stated, "It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property [citations omitted]".

Summary of this case from Howell v. Gagliano

In Ritto, the Court of Appeals held that a landlord, "by a long course of conduct of his employees in reporting malfunctions of the machines to the repair service and the owner, so intervened in the operation of the business as to give rise to a reliance by tenants in the building on reports of malfunction being made by the landlord."

Summary of this case from Granados v. Balemaster

In Ritto v Goldberg (27 NY2d 887, 889 [1970]), the landlord leased a room to the operators of commercial washing machines.

Summary of this case from Nunez v. Lookout, LLC

In Ritto v Goldberg (27 NY2d 887, 889 [1970]), the landlord leased a room to the operators of commercial washing machines.

Summary of this case from Nunez v. Lookout, LLC
Case details for

Ritto v. Goldberg

Case Details

Full title:VIRGINIA RITTO et al., Respondents, v. MOLLY GOLDBERG, as Executrix of…

Court:Court of Appeals of the State of New York

Date published: Nov 19, 1970

Citations

27 N.Y.2d 887 (N.Y. 1970)
317 N.Y.S.2d 361
265 N.E.2d 772

Citing Cases

Singh v. Nalpak 1196 Co.

In determining control over the premises, New York courts look not only to the terms of the lease agreement,…

Owens v. Morris Park Ave. Props., LLC

'(Gronski v. County of Monroe, 18 NY 3d 374, 379, 963 N.E. 1219 ,1222 [2011], quoting Butler v. Rafferty ,…