Grossman v. Janette H. Corp.

Order entered on August 22, 1962, granting plaintiff’s motion to strike but defense of the Statute of Limitations and denying defendant-appellant’s cross motion for summary judgment reversed, .on the law, with $20 costs and disbursements to the appellant, and the cross .motion granted, with $10 costs. The complaint for personal injuries alleges an insufficiently illuminated and defective stairway on which plaintiff fell and was injured. The action was commenced four and a half years after the cause arose. Although the term “nuisance” is used in describing the dangerous eon- , ditions, the action is one in negligence. (Bowers v. Village of South Glens Falls, 260 App. Div. 439, 440, affd. 286 N. Y. 616; Gautieri v. New Rochelle Hosp. Assn., 4 A D 2d 874, affd. 5 N Y 2d 952). The three-year Statute of Limitations is therefore applicable (Katz v. Manhattan General, 2 A D 2d 876, affd. 3 N Y 2d 840). Since the common-law dhty existed to maintain the stairway for tenants free from negligence, the additional statutory duty does not affect the basic nature of the liability or enlarge the limitations of time. (Lorberblatt v. Gerst, 10 N Y 2d 244; Brady v. Rudin Management Co., 11 N Y 2d 681.) Concur—McNally, J. P., Stevens, Eager, Steuer and Bergan, JJ.