Restituyo v East 174th St. Inc.

Restituyo v East 174th St. Inc. 2014 NY Slip Op 08781 Decided on December 16, 2014 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 December 16, 2014
Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman, Gische, JJ.
13804 307768/10

[*1] Nicholas Restituyo, Plaintiff-Appellant,

v

East 174th Street Inc., et al., Defendants-Respondents.

Jaroslawicz & Jaros LLC, New York (David Tolchin of counsel), for appellant.

Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for East 174th Street Inc., respondent.

Hardin, Kundla, McKeon & Poletto, P.A., New York (Stephen J. Donahue of counsel), for Associated Food Stores Inc. and Teo Food Corp., respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 25, 2013, which, insofar as appealed from as limited by the briefs, granted the motions of defendants East 174th Street Inc. (owner), and Associated Food Stores Inc. (Associated) and Teo Food Corp. (Teo) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff, an employee of defendant Teo Food Corp, was injured when he was caused to fall by a hole in a metal platform in an area in the back of the premises that was used to receive deliveries. The court properly found that the owner of the premises and Associated, which subleased the premises to Teo, were out-of-possession landlords, and that the hole that caused plaintiff's fall was not a significant structural defect, and the repair was not extraordinary in scope or expense (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [1st Dept 2003]; Quinones v 27 Third City King Rest., 198 AD2d 23 [1st Dept 1993]; see also Garrow v Smith, 198 AD2d 622, 623-624 [3d Dept 1993]). Moreover, the statutory sections allegedly violated by the owner and Associated, which were cited by plaintiff in the complaint and bill of particulars, were not specific statutory safety provisions (see e.g. Centeno v 575 E. 137th St. Real Estate, Inc., 111 AD3d 531 [1st Dept 2013]; Devlin v Blaggards III Rest. Corp., 80 AD3d 497 [1st Dept 2011], lv denied 16 NY3d 713 [2011]).

Plaintiff's remaining contentions are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 16, 2014

CLERK