Garcia v. Arbern Realty Co.

Appellate Division of the Supreme Court of New York

Garcia v. Arbern Realty Co.

89 A.D.2d 616

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

DecidedJuly 26, 1982

StatusPublished

Cited by9 cases

This text of 89 A.D.2d 616 (Garcia v. Arbern Realty Co.) 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

Garcia v. Arbern Realty Co., 89 A.D.2d 616 (N.Y. Ct. App. 1982).

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Opinion

In a negligence action to recover damages for personal injuries, etc., defendant Ace Prescription Center, Inc., appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated January 26, 1982, which denied its motion for summary judgment dismissing the complaint as against it. Order reversed, on the law, with one bill of $50 costs and disbursements, motion granted. Plaintiff Jose Garcia was allegedly injured after patronizing the appellant’s drugstore, when he fell in a stairway used in common by all the business tenants and their customers. No party disputes the facts that the appellant did not lease [617]*617the stairwell and did not exercise any control over it. Similarly, there is no dispute concerning the landlord’s duty pursuant to the lease to maintain and repair the stairwell. The sole issue on appeal is whether the appellant can be held liable in damages for a failure to warn its customers and to notify the landlord of the defective condition, assuming it was aware of the defect. We think not. Since the appellant exercised no control over the stairwell, it had no duty to warn the injured plaintiff of a defective condition it did not create (see Howe v Kroger Co., 598 SW2d 929 [Tex]; Beaney v Carlson, 174 Ohio St 409; Ann., 48 ALR3d 1163). Damiani, J. P., Titone, Weinstein and Bracken, JJ., concur.

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In a negligence action to recover damages for personal injuries, etc., defendant Ace Prescription Center, Inc., appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated January 26, 1982, which denied its motion for summary judgment dismissing the complaint as against it. Order reversed, on the law, with one bill of $50 costs and disbursements, motion granted. Plaintiff Jose Garcia was allegedly injured after patronizing the appellant’s drugstore, when he fell in a stairway used in common by all the business tenants and their customers. No party disputes the facts that the appellant did not lease [617]*617the stairwell and did not exercise any control over it. Similarly, there is no dispute concerning the landlord’s duty pursuant to the lease to maintain and repair the stairwell. The sole issue on appeal is whether the appellant can be held liable in damages for a failure to warn its customers and to notify the landlord of the defective condition, assuming it was aware of the defect. We think not. Since the appellant exercised no control over the stairwell, it had no duty to warn the injured plaintiff of a defective condition it did not create (see Howe v Kroger Co., 598 SW2d 929 [Tex]; Beaney v Carlson, 174 Ohio St 409; Ann., 48 ALR3d 1163). Damiani, J. P., Titone, Weinstein and Bracken, JJ., concur.

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Bluebook (online)

89 A.D.2d 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-arbern-realty-co-nyappdiv-1982.

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