Gantz v. Kurz

Appellate Division of the Supreme Court of New York

Gantz v. Kurz

203 A.D.2d 240, 610 N.Y.S.2d 279, 1994 N.Y. App. Div. LEXIS 3198

Appellate Division of the Supreme Court of the State of New York·Decided April 4, 1994·Published·Cited by 5 cases

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Kings County (Huttner, J.), dated July 27, 1992, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

An out-of-possession landlord’s reservation of the right, under the terms of a lease, to enter upon the premises for the purpose of inspecting it and making repairs to it may be deemed to constitute sufficient retention of control to permit a finding that the landlord had constructive notice of a defective condition, in violation of an obligation imposed by statute, and to subject the landlord to liability (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Worth Distribs. v Latham, 59 NY2d 231, 238; Wiesen v Moppa, 199 AD2d 312).

Here, the plaintiffs submitted sufficient proof in opposition to the defendants’ motion for summary judgment that the [241] allegedly defective condition was a structural defect which violated defendants’ responsibility "for the safe maintenance of the building and its facilities” under the Administrative Code of the City of New York § 27-128 to defeat the motion (see, Guzman v Haven Plaza Hous. Dev. Fund Co., supra; Worth Distribs. v Latham, supra; Wiesen v Moppa, supra). Mangano, P. J., Miller, Hart and Florio, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Kings County (Huttner, J.), dated July 27, 1992, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

An out-of-possession landlord’s reservation of the right, under the terms of a lease, to enter upon the premises for the purpose of inspecting it and making repairs to it may be deemed to constitute sufficient retention of control to permit a finding that the landlord had constructive notice of a defective condition, in violation of an obligation imposed by statute, and to subject the landlord to liability (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Worth Distribs. v Latham, 59 NY2d 231, 238; Wiesen v Moppa, 199 AD2d 312).

Here, the plaintiffs submitted sufficient proof in opposition to the defendants’ motion for summary judgment that the [241] allegedly defective condition was a structural defect which violated defendants’ responsibility "for the safe maintenance of the building and its facilities” under the Administrative Code of the City of New York § 27-128 to defeat the motion (see, Guzman v Haven Plaza Hous. Dev. Fund Co., supra; Worth Distribs. v Latham, supra; Wiesen v Moppa, supra). Mangano, P. J., Miller, Hart and Florio, JJ., concur.

Gantz v. Kurz, 203 A.D.2d 240, 610 N.Y.S.2d 279, 1994 N.Y. App. Div. LEXIS 3198 (N.Y. Ct. App. 1994).

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