Pantekas v. Westyard Corp.

44 A.D.2d 789, 355 N.Y.S.2d 128, 1974 N.Y. App. Div. LEXIS 5077

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1974
• Status: Published

Opinion

Judgment of dismissal, Supreme Court, New York County, entered December 15, 1972, unanimously reversed, on the law, and the ease remanded for trial anew, with $60 costs and disbursements to abide the event. Upon jury trial, the court dismissed at the close of plaintiff-appellant’s ease. Defendant-respondent Dawson Arthur Corp., owner of an apartment building, virtually empty of tenants and permitted to fall into disrepair, claims to be without responsibility for its condition, cause of plaintiff’s accident, because, having turned the building over to defendant-respondent Allied Maintenance Corp., it no longer exercised operation and control, and that plaintiff was eontributorily negligent. Allied Maintenance interposed the same defenses. The court’s dismissal was predicated upon a holding that the building was no longer occupied by three or more families, the tenancy having diminished to two, with, consequently, no obligation on the landlord to repair, and hence none on its contractor. The clear language of subdivisions 1, 7 and 8 of section 4 of the Multiple Dwelling Law is precisely to the contrary. (See, also, Multiple Dwelling Law, § 78; Feneis v. Lewin, 185 App. Div. 41.) The trial court also held that there was no notice of the condition of disrepair to the landlord because it had been given only to the superintendent, an employee of Allied Maintenance. But the superintendent was an agent of the contractor and hence of the landlord;. both are chargeable with notice. And, there being a maintenance contract covering repairs, Allied Maintenance is no more exculpable than its principal. (See Mollino v. Ogden & Clarkson Corp., 243 N. Y. 450.) Concur — McGivern, P. J., Markewich, Nunez, Capozzoli and Lane, JJ.