Fischbein v. 1498 Third Realty Corp.

Appellate Division of the Supreme Court of New York

Fischbein v. 1498 Third Realty Corp.

225 A.D.2d 1104, 639 N.Y.2d 591, 639 N.Y.S.2d 591, 1996 N.Y. App. Div. LEXIS 2820

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 8, 1996

StatusPublished

Cited by2 cases

This text of 225 A.D.2d 1104 (Fischbein v. 1498 Third Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fischbein v. 1498 Third Realty Corp., 225 A.D.2d 1104, 639 N.Y.2d 591, 639 N.Y.S.2d 591, 1996 N.Y. App. Div. LEXIS 2820 (N.Y. Ct. App. 1996).

Pincite

Opinion

Memorandum: Plaintiff fractured her left ankle when she slipped on a wet spot in a bar owned and operated by C&E Corporation, which leased the premises from 1498 Third Realty Corporation (defendant). Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Where, as here, an owner out of possession retains the right to reenter and make repairs to the demised property, the owner is liable for injuries arising from a structural or design defect in the property (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566; Sharaby v Gamel, 140 AD2d 319). Plaintiff’s injury, however, was not caused by a structural defect in the property, but instead was caused by the tenant’s alleged failure to perform general maintenance (see, Aprea v Carol Mgt. [1105]*1105Corp., 190 AD2d 838; Manning v New York Tel. Co., 157 AD2d 264; see also, Levy v Daitz, 196 AD2d 454). Plaintiffs remaining contention regarding Real Property Law § 231 (2) is raised for the first time on appeal and, thus, is unpreserved for review (see, Szigyarto v Szigyarto, 64 NY2d 275, 280; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542). (Appeal from Order of Supreme Court, Kings County, Aronin, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.

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Memorandum: Plaintiff fractured her left ankle when she slipped on a wet spot in a bar owned and operated by C&E Corporation, which leased the premises from 1498 Third Realty Corporation (defendant). Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Where, as here, an owner out of possession retains the right to reenter and make repairs to the demised property, the owner is liable for injuries arising from a structural or design defect in the property (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566; Sharaby v Gamel, 140 AD2d 319). Plaintiff’s injury, however, was not caused by a structural defect in the property, but instead was caused by the tenant’s alleged failure to perform general maintenance (see, Aprea v Carol Mgt. [1105]*1105Corp., 190 AD2d 838; Manning v New York Tel. Co., 157 AD2d 264; see also, Levy v Daitz, 196 AD2d 454). Plaintiffs remaining contention regarding Real Property Law § 231 (2) is raised for the first time on appeal and, thus, is unpreserved for review (see, Szigyarto v Szigyarto, 64 NY2d 275, 280; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542). (Appeal from Order of Supreme Court, Kings County, Aronin, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.

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Bluebook (online)

225 A.D.2d 1104, 639 N.Y.2d 591, 639 N.Y.S.2d 591, 1996 N.Y. App. Div. LEXIS 2820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischbein-v-1498-third-realty-corp-nyappdiv-1996.

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