Tanoury v. Cancilla

Appellate Division of the Supreme Court of New York

Tanoury v. Cancilla

149 A.D.2d 960, 540 N.Y.S.2d 91, 1989 N.Y. App. Div. LEXIS 5986

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

DecidedApril 14, 1989

StatusPublished

Cited by2 cases

This text of 149 A.D.2d 960 (Tanoury v. Cancilla) 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

Tanoury v. Cancilla, 149 A.D.2d 960, 540 N.Y.S.2d 91, 1989 N.Y. App. Div. LEXIS 5986 (N.Y. Ct. App. 1989).

Pincite

Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Defendant Vincent Cancilla is entitled to summary judgment dismissing plaintiff’s complaint against him. An out-of-possession lessor is not liable for injuries that occur on the leased premises unless the lessor has retained a contractual responsibility to keep the premises in repair (Putnam v Stout, 38 NY2d 607, 617). In the present case, the tenant assumed the burden of maintaining the premises and the equipment; therefore, the lessor cannot be held liable for burns sustained by the tenant’s employee when a pizza oven flashed over as the employee attempted to relight it. Although a lessor has a duty to warn a tenant of any latent defects in the premises (see, Prosser and Keeton, Torts §63, at 436 [5th ed]; 46 NY Jur, Premises Liability, §23, at 68-71), in this case, defendant’s wife told the tenant at the time of the lease that she had been burned in a similar incident involving the oven. Moreover, prior to plaintiff’s accident, the tenant himself had been burned while attempting to relight the oven. Under these circumstances, the landlord is not liable for plaintiff’s injuries. In light of this holding, it is unnecessary to reach the remaining issue raised by defendant. (Appeal from order of Supreme Court, Oneida County, Grow, J. — summary judgment.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.

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Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Defendant Vincent Cancilla is entitled to summary judgment dismissing plaintiff’s complaint against him. An out-of-possession lessor is not liable for injuries that occur on the leased premises unless the lessor has retained a contractual responsibility to keep the premises in repair (Putnam v Stout, 38 NY2d 607, 617). In the present case, the tenant assumed the burden of maintaining the premises and the equipment; therefore, the lessor cannot be held liable for burns sustained by the tenant’s employee when a pizza oven flashed over as the employee attempted to relight it. Although a lessor has a duty to warn a tenant of any latent defects in the premises (see, Prosser and Keeton, Torts §63, at 436 [5th ed]; 46 NY Jur, Premises Liability, §23, at 68-71), in this case, defendant’s wife told the tenant at the time of the lease that she had been burned in a similar incident involving the oven. Moreover, prior to plaintiff’s accident, the tenant himself had been burned while attempting to relight the oven. Under these circumstances, the landlord is not liable for plaintiff’s injuries. In light of this holding, it is unnecessary to reach the remaining issue raised by defendant. (Appeal from order of Supreme Court, Oneida County, Grow, J. — summary judgment.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.

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Bluebook (online)

149 A.D.2d 960, 540 N.Y.S.2d 91, 1989 N.Y. App. Div. LEXIS 5986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tanoury-v-cancilla-nyappdiv-1989.

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