Lucero v DRK, LLC

Lucero v DRK, LLC 2013 NY Slip Op 07859 Decided on November 26, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2013
Friedman J.P., Renwick, Freedman, Feinman, JJ.
11182 7487/06

[*1]Gregorio Lucero, Plaintiff-Appellant,

v

DRK, LLC, et al. Defendants-Respondents.




Gorayeb & Associates, P.C., New York (John M. Shaw of
counsel), for appellant.
Zisholtz & Zisholtz, LLP, Mineola (Stuart S. Zisholtz of
counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about August 29, 2012, which, insofar as appealed from as limited by the briefs, granted defendant New York City Industrial Development Agency's (IDA) motion for summary judgment dismissing the complaint as against it, and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Supreme Court properly dismissed the complaint as against
defendant IDA. Plaintiff correctly argues that IDA owned the premises at the time of plaintiff's accident, and that the ramp that collapsed constituted the type of structural defect for which constructive notice could be imposed upon the out-of-possession landowner. However, absent a contractual obligation to repair/maintain the premises, or the right to reenter it to make repairs at the tenant's expense, IDA may not be charged with constructive notice of that structural defect (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566-567 [1987]; Johnson v Urena Serv. Ctr., 227 AD2d 325, 326 [1st Dept 1996], lv denied 88 NY2d 814 [1996]). Under this lease, not only was IDA not obligated to make repairs or maintain the premises, nor the right reserved by IDA to reenter to make such repairs at the tenant's expense, but the lease clearly and expressly disavowed any such obligations.

We have considered the parties' remaining contentions, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK