Alonzo v. McDonald's Corp.

282 A.D.2d 395, 723 N.Y.S.2d 499, 2001 N.Y. App. Div. LEXIS 4078

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about February 1, 2000, which, in an action for personal injuries sustained by an employee of defendant franchisor’s franchisee, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed since defendant, an out-of-possession landlord, cannot be held liable for injuries caused by a defective condition on its premises absent evidence that it had agreed to be responsible for maintenance or repair (see, Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 140-141; Velazquez v Tyler Graphics, 214 AD2d 489). The documentary evidence submitted on the motion, namely, defendant’s franchise, license and lease agreements with plaintiffs employer, clearly establish that plaintiffs employer was to be solely responsible for the maintenance, repair and code compliance of the premises and for any personal injuries sustained thereon, and that defendant did not reserve a right of reentry for the purpose of inspection and making repairs such as might warrant a finding that it had consented to be responsible for making repairs (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566). We reject plaintiffs argument that such consent can be found in the lease provision giving defendant the option of performing any lease obligations not performed by plaintiffs employer (cf., Dalzell v McDonald’s Corp., 220 AD2d 638, lv denied 88 NY2d 815; Schoenwandt v Jamfro Corp., 261 AD2d 117). Concur — Williams, J. P., Tom, Wallach, Buckley and Friedman, JJ.