Bruce Gerber v West Hempstead Convenience

Gerber v West Hempstead Convenience 2003 NY Slip Op 19559 [2 AD3d 260] December 16, 2003 Appellate Division, First Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Bruce Gerber, Respondent,
v
West Hempstead Convenience, Inc., Defendant, and Mobil Oil Corporation et al., Appellants.

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Order, Supreme Court, New York County (Edward Lehner, J.), entered April 30, 2003, which, in an action for personal injuries sustained on premises operated by defendant as a gasoline station and "mini-mart" pursuant to a lease and franchise agreement with defendants-appellants, denied appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Issues of fact exist as to whether appellants are out-of-possession landlords who relinquished supervisory control over franchisee/lessee's operation of the mini-mart where plaintiff fell, allegedly because of a missing floor tile. Such issues are raised by evidence that appellants had the right to enter and inspect the mini-mart at all reasonable times to ensure compliance with franchise standards, and exercised that right regularly and rigorously. Indeed, one of appellants' inspectors testified that if she had seen a missing floor tile at the entrance of the mini-mart, as alleged, she would have made a note of it and required the franchisee/lessee to fix it. There is even evidence tending to show that the inspector did make such a note. In addition, even if appellants were out-of-possession landlords, they are subject to liability for plaintiff's injuries if it is determined that they rented the premises with a dangerous condition and knew or should have known of the condition (see Campbell v Elsie S. Holding Co., 251 NY 446, 448-449 [1929]). Concur—Nardelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.