Lucero v. DRK

Appellate Division of the Supreme Court of New York

Lucero v. DRK

111 A.D.3d 578, 975 N.Y.S.2d 662

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

DecidedNovember 26, 2013

StatusPublished

This text of 111 A.D.3d 578 (Lucero v. DRK) 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

Lucero v. DRK, 111 A.D.3d 578, 975 N.Y.S.2d 662 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about August 29, 2012, which, insofar as appealed from as limited by the briefs, granted defendant New York City Industrial Development Agency’s (IDA) motion for summary judgment dismissing the complaint as against it, and denied plaintiffs cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Supreme Court properly dismissed the complaint as against defendant IDA. Plaintiff correctly argues that IDA owned the premises at the time of plaintiffs accident, and that the ramp that collapsed constituted the type of structural defect for which constructive notice could be imposed upon the out-of-possession landowner. However, absent a contractual obligation to repair/ maintain the premises, or the right to reenter it to make repairs at the tenant’s expense, IDA may not be charged with constructive notice of that structural defect (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566-567 [1987]; Johnson v Urena Serv. Ctr., 227 AD2d 325, 326 [1st Dept 1996], lv denied 88 NY2d 814 [1996]). Under this lease, not only was IDA not obligated to make repairs or maintain the premises, nor was the right reserved by IDA to reenter to make such repairs at the tenant’s expense, but the lease clearly and expressly disavowed any such obligations.

We have considered the parties’ remaining contentions, and find them unavailing. Concur — Friedman J.E, Renwick, Freedman and Feinman, JJ.

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Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about August 29, 2012, which, insofar as appealed from as limited by the briefs, granted defendant New York City Industrial Development Agency’s (IDA) motion for summary judgment dismissing the complaint as against it, and denied plaintiffs cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Supreme Court properly dismissed the complaint as against defendant IDA. Plaintiff correctly argues that IDA owned the premises at the time of plaintiffs accident, and that the ramp that collapsed constituted the type of structural defect for which constructive notice could be imposed upon the out-of-possession landowner. However, absent a contractual obligation to repair/ maintain the premises, or the right to reenter it to make repairs at the tenant’s expense, IDA may not be charged with constructive notice of that structural defect (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566-567 [1987]; Johnson v Urena Serv. Ctr., 227 AD2d 325, 326 [1st Dept 1996], lv denied 88 NY2d 814 [1996]). Under this lease, not only was IDA not obligated to make repairs or maintain the premises, nor was the right reserved by IDA to reenter to make such repairs at the tenant’s expense, but the lease clearly and expressly disavowed any such obligations.

We have considered the parties’ remaining contentions, and find them unavailing. Concur — Friedman J.E, Renwick, Freedman and Feinman, JJ.

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Bluebook (online)

111 A.D.3d 578, 975 N.Y.S.2d 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucero-v-drk-nyappdiv-2013.

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