Fraher v. JNPJC Brusco Associates

286 A.D.2d 289, 729 N.Y.S.2d 140, 2001 N.Y. App. Div. LEXIS 8313

Opinion

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about December 7, 1999, which, in an action for personal injuries sustained when plaintiff fell down an allegedly greasy exterior basement stairway used by defendant-respondent commercial tenant and the building’s owner and three other commercial tenants, insofar as appealed from, granted defendant-respondent’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs, without prejudice to plaintiffs moving to replead.

The complaint was properly dismissed as against defendant-respondent in view of its lease, which did not include the subject stairway as part of the demised premises or otherwise make respondent responsible for its maintenance, and in the absence of an allegation that respondent created the greasy condition (see, Millman v Citibank, 216 AD2d 278). We affirm, however, without prejudice to plaintiffs moving, if he is so advised, to replead based on factual references in the papers that could give rise to a cause of action charging defendant with creation of the condition. Concur — Rosenberger, J. P., Nardelli, Tom, Andrias and Ellerin, JJ.