State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 11, 2014 518130 

________________________________

VERNON WHITTINGTON,

Appellant,

v

MEMORANDUM AND ORDER

CHAMPLAIN CENTRE NORTH LLC,

Respondent.

________________________________

Calendar Date: October 16, 2014

Before: Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

__________

Flink Smith, LLC, Albany (Christopher A. Guetti of

counsel), for appellant.

Goldberg Segalla, LLP, Syracuse (Molly M. Ryan of counsel),

for respondent.

__________

Lahtinen, J.P.

Appeal from an order of the Supreme Court (Ryan, J.),

entered September 16, 2013 in Clinton County, which granted

defendant's motion for summary judgment dismissing the complaint.

Plaintiff was injured when he slipped and fell as he

descended stairs while working at Dergham Enterprises, Inc.,

doing business as DND Unisex Hair Design (hereinafter DND), a

business located in defendant's shopping mall. A loose vinyl or

rubber stair tread allegedly slid when plaintiff stepped on it,

causing him to fall. The stairs were located within the area of

the mall where DND had operated its business in premises it had

leased from defendant since the late 1980s. Following discovery,

defendant moved for summary judgment dismissing the complaint

upon the ground that, as an out-of-possession landlord, it owed
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no duty to plaintiff to maintain the stairs located in premises

leased to DND. Supreme Court granted defendant's motion. 

Plaintiff appeals.

"Generally, 'an out-of-possession landlord who relinquishes

control of the premises is not liable to employees of a lessee

for personal injuries caused by an unsafe condition existing on

the premises'" (Brown v BT-Newyo, LLC, 93 AD3d 1138, 1138 [2012],

lv denied 19 NY3d 815 [2012], quoting Brady v Cocozzo, 174 AD2d

814, 814 [1991]). "'Exceptions to this rule include situations

where the landlord retains control of the premises, has

specifically contracted to repair or maintain the property, has

through a course of conduct assumed a responsibility to maintain

or repair the property or has affirmatively created a dangerous

condition'" (Vanderlyn v Daly, 97 AD3d 1053, 1055 [2012], lv

denied 20 NY3d 853 [2012], quoting Davison v Wiggand, 247 AD2d

700, 701 [1998]). Plaintiff contends that defendant assumed a

duty to make repairs pursuant to the terms of the lease, by its

course of conduct and/or under a statutory provision.

Although defendant reserved the right in the article of the

lease addressing entry to the premises (article 20) to do so at

reasonable times for the purpose of inspecting the premises and

making necessary repairs, that article further stated that

nothing therein should imply a duty for defendant to perform

DND's obligations under the lease. In article 10, which

addressed repairs and maintenance, the lease provided that

defendant's obligation was limited to the outside walls,

structure and foundation, whereas DND's duty extended broadly to 

the nonstructural portions of the leased premises. A

nonexclusive list of items for which DND was responsible

included, among many others, "floor coverings" and encompassed

"improvements located within or exclusively serving the

[p]remises." The lease clearly delineated that DND was

responsible for maintenance and repair in the area where the

accident occurred, and defendant's limited right to enter was

"'insufficient to establish the requisite degree of control

necessary for the imposition of liability'" (Vanderlyn v Daly, 97

AD3d at 1055, quoting Grady v Hoffman, 63 AD3d 1266, 1268 [2009];

see Schwegler v City of Niagara Falls, 21 AD3d 1268, 1269-1270

[2005]). 
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Plaintiff failed to raise a triable issue as to whether

defendant assumed a duty to repair the loose stair tread by its

course of conduct. An out-of-possession landlord that has a

right to enter the premises may be liable if it has assumed a

duty to make repairs and it has notice of a dangerous condition

(see Pomeroy v Gelber, 117 AD3d 1161, 1162 [2014]; Marino v A.G.

Props. of Kingston, LLC, 85 AD3d 1429, 1429-1430 [2011]). Here,

DND's president acknowledged that DND was responsible for

maintenance and repair in the relevant area of the store. The

fact that employees of defendant used the subject stairs when

conducting fire inspections did not give rise to a duty to

repair. Although defendant's employees indicated that notice

would be given to a store of a dangerous condition observed

therein, defendant's employees did not undertake repairs of such

conditions. Plaintiff failed to present proof that defendant

assumed a duty to repair the stair tread in DND's store by a

course of conduct or otherwise. The general provisions of Labor

Law § 376 are not sufficient, under the circumstances of this

case, to establish a duty of an out-of-possession landlord to an

employee of a lessee injured on premises controlled by the lessee

(see Brown v BT-Newyo, LLC, 93 AD3d at 1138-1139; see also

Mastrokostas v 673 Madison, LLC, 109 AD3d 459, 460 [2013]).

Garry, Egan Jr., Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court