Quinones v. 27 Third City King Restaurant, Inc.

Nov 4, 1993
Versions:198 A.D.2d 23
603 N.Y.S.2d 130

—Order of the Supreme Court, Bronx County (Bertram Katz, J.), entered November 17, 1992, which, inter alia, denied the defendants-appellants’ cross-motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, and on all cross-claims asserted against them, unanimously reversed insofar as appealed from, on the law, with costs, and the defendants-appellants’ cross-motion is granted. The clerk is directed to enter judgment in favor of the defendants-appellants accordingly.

The plaintiffs complaint alleges that she fell and suffered personal injuries while leaving the defendant-respondent’s restaurant when her heel became caught in a crack or defect in a step located inside the restaurant. Plaintiffs affidavit stated that the step had a "plastic like” covering on it which "had apparently been worn out and was rutted with pits and holes”. The bill of particulars included photographs taken of the step depicting the area where plaintiff’s heel allegedly became caught.

It is not disputed that pursuant to an assumption agreement entered into by the defendant-appellant Gabay and Ameri and the defendant-respondent 27 Third City King Restaurant, the Restaurant assumed the existing lease and agreed to take possession of the demised premises "as is”. The lease provided that the owner or its agent retained the right, but was not obligated, to enter the demised premises at any time in any emergency, and at other reasonable times to, inter alia, examine and make such repairs as deemed necessary and reasonably desirable to comply with the law, etc., or in the event that the tenant failed to make repairs or perform any work tenant was obligated to perform under the lease. The parties further do not dispute that the defendant-respondent Restaurant did substantial remodeling to the leased space, which included the replacement of the floor and the installation of the interior step where plaintiff allegedly fell.

"[T]he reservation of a right to reenter, inspect and make repairs, even without a duty to do so, may subject a landlord to liability in commercial premises covered by the Administrative Code of the City of New York.” (Manning v New York Tel. Co., 157 AD2d 264, 269, citing Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559.) However, we have held that only a significant structural or design defect in violation of a specific statutory safety provision will furnish a basis for such liability (supra; Levy v Daitz, 196 AD2d 454). Here the ruts, pitting and holes in the plastic covering of an interior step installed by the tenant, do not constitute a significant structural defect, and it has not been alleged that there was a violation of any specific statutory provision (supra). Sergio v Benjolo N.V. (168 AD2d 235), relied upon by the plaintiff-respondent does not compel a different result. The dispositive issue therein was whether plaintiff had a viable cause of action under Labor Law § 241 (6) and Industrial Code (12 NYCRR) § 23-1.7 (e). Concur — Rosenberger, J. P., Ross, Asch and Rubin, JJ.