Fischbein v. 1498 Third Realty Corp.

Memorandum: Plaintiff fractured her left ankle when she slipped on a wet spot in a bar owned and operated by C&E Corporation, which leased the premises from 1498 Third Realty Corporation (defendant). Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Where, as here, an owner out of possession retains the right to reenter and make repairs to the demised property, the owner is liable for injuries arising from a structural or design defect in the property (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566; Sharaby v Gamel, 140 AD2d 319). Plaintiff’s injury, however, was not caused by a structural defect in the property, but instead was caused by the tenant’s alleged failure to perform general maintenance (see, Aprea v Carol Mgt. 1105 Corp., 190 AD2d 838; Manning v New York Tel. Co., 157 AD2d 264; see also, Levy v Daitz, 196 AD2d 454). Plaintiffs remaining contention regarding Real Property Law § 231 (2) is raised for the first time on appeal and, thus, is unpreserved for review (see, Szigyarto v Szigyarto, 64 NY2d 275, 280; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542). (Appeal from Order of Supreme Court, Kings County, Aronin, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.