Restituyo v. East 174th Street Inc.

123 A.D.3d 599, 999 N.Y.S.2d 61

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2014
• Docket: 13804 307768/10
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 25, 2013, which, insofar as appealed from as limited by the briefs, granted the motions of defendants East 174th Street Inc. (owner), and Associated Food Stores Inc. (Associated) and Teo Food Corp. (Teo) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff, an employee of defendant Teo Food Corp, was injured when he was caused to fall by a hole in a metal platform in an area in the back of the premises that was used to receive deliveries. The court properly found that the owner of the premises and Associated, which subleased the premises to Teo, were out-of-possession landlords, and that the hole that caused plaintiffs fall was not a significant structural defect, and the repair was not extraordinary in scope or expense (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [1st Dept 2003]; Quinones v 27 Third City King Rest., 198 AD2d 23 [1st Dept 1993]; see also Garrow v Smith, 198 AD2d 622, 623-624 [3d Dept 1993]). Moreover, the statutory sections allegedly violated by the owner and Associated, which were cited by plaintiff in the complaint and bill of particulars, were not specific statutory safety provisions (see e.g. Centeno v 575 E. 137th St. Real Estate, Inc., 111 AD3d 531 [1st Dept 2013]; Devlin v Blaggards III Rest. Corp., 80 AD3d 497 [1st Dept 2011], lv denied 16 NY3d 713 [2011]).

Plaintiffs remaining contentions are unavailing.

Concur— Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman and Gische, JJ.