Raffav.Verni

Supreme Court, Appellate Division, First Department, New York.May 5, 2016
29 N.Y.S.3d 183 (N.Y. App. Div. 2016)

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05-05-2016

Deborah RAFFA, Plaintiff–Appellant, v. Vito R. VERNI, et al., Defendants–Respondents, Jen–Joe Corp., Defendant.

Spinak Law Office, White Plains (Robert Spinak of counsel), for appellant. Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for respondents.


Spinak Law Office, White Plains (Robert Spinak of counsel), for appellant.

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered March 19, 2015, which granted the motion of defendants Vito R. Verni, Paul Properties, Inc., and Verco Properties, LLC (collectively Paul Properties) for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

Dismissal of the complaint as against out-of-possession landlords Paul Properties was proper in this action where plaintiff alleges that she was injured when, while exiting a restaurant located on premises owned by Paul Properties, she turned to the right of the sidewalk and tripped over an open cellar door and fell down the stairs leading to the basement of the premises. Although Paul Properties reserved the right to re-enter the leased premises for purposes of inspection and repair, the properly functioning cellar door, left open by someone within the tenant's control, was not a significant structural or design defect, and plaintiff did not allege a violation of a specific statutory provision in order to impose liability upon Paul Properties. Indeed, the record shows that the door was unsafe solely because it was improperly kept open by the restaurant (see Yuying Qiu v. J&J Grocery & Deli Corp., 115 A.D.3d 627, 982 N.Y.S.2d 755 [1st Dept.2014] ; Almanzar v. Picasso's Clothing, 281 A.D.2d 341, 723 N.Y.S.2d 11 [1st Dept.2001] ).

We have considered plaintiff's remaining contentions and find them unavailing.

SWEENY, J.P., ACOSTA, MANZANET–DANIELS, GISCHE, GESMER, JJ., concur.