Del Carmen Hernandez v 34 Downing Owners Corp.

Del Carmen Hernandez v 34 Downing Owners Corp. 2017 NY Slip Op 01999 Decided on March 21, 2017 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 March 21, 2017
Acosta, J.P., Renwick, Manzanet-Daniels, Webber, Gesmer, JJ.
3456 156644/12

[*1]Maria Del Carmen Hernandez, Plaintiff-Respondent,

v

34 Downing Owners Corp., Defendant-Appellant.

Mauro Lilling Naparty LLP, Woodbury (Kathryn M. Beer of counsel), for appellant.

Law Offices of William Pager, Brooklyn (William Pager of counsel), for respondent.

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered October 17, 2016, which denied the motion of defendant building owner for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when a door to the cellar of the restaurant at which she worked, which was located in the sidewalk abutting the building, swung shut and struck her on the head. Pursuant to its lease with nonparty Manhattan Mansions, which leased the commercial area of the building, defendant remained obligated to maintain and repair the cellar stairs and sidewalk. Although an out-of-possession landlord contractually obligated to make repairs may not be held liable unless it created or had notice of the dangerous condition (see Gomez v 192 E. 151st St. Assoc., L.P., 26 AD3d 276, 277 [1st Dept 2006]; Torres v West St. Realty Co., 21 AD3d 718, 721 [1st Dept 2005], lv denied 7 NY3d 703 [2006]), here, defendant has failed to establish that it lacked constructive notice of the allegedly defective cellar door or that it did not create the condition.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 21, 2017

CLERK