J. C. Penney Co. v. Teddam Realty Corp.

Order entered May 14, 1969, granting plaintiff summary judg [1007] meat, unanimously reversed on the law and the motion denied, without costs or disbursements. Under the repairs and indemnity provisions of the lease liability of the landlord for damage to the tenant’s property occasioned by the landlord’s failure to repair arose only after notice to or knowledge by the landlord of the need for repair and the expiration of a reasonable time within which to effect it. (Thomas v. Kingsland 108 N. Y. 616; Stool v. Penney Co., 404 F. 2d 562; 1 Rasch, Landlord and Tenant, § 522.) Respondent’s damage is alleged to have been caused by a series of roof leaks. In an affidavit opposing the motion appellant’s president states that each time appellant was notified of a leak it was repaired immediately and that on no occasion did any leak occur at the same location as a prior leak. Issues of fact are presented as to the extent of damage, if any, sustained after notice and failure to repair and whether, and if so when, appellant was or should have been aware of defects in the roof requiring more extensive repairs than the correction of the individual leaks complained of. Concur — Eager, J. P., Markewich, Nunez, McNally and Macken, JJ.