Tanoury v. Cancilla

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

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.