                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   517698
________________________________

CHRISTINA BOICE,
                    Appellant-
                    Respondent,
     v

PCK DEVELOPMENT COMPANY, LLC,
   et al.,
                    Defendants
                    and Third-
                    Party                   MEMORANDUM AND ORDER
                    Plaintiffs-
                    Respondents-
                    Appellants;

FOOT LOCKER RETAIL, INC.,
                    Third-Party
                    Defendant-
                    Respondent.
________________________________


Calendar Date:   September 10, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


      Finkelstein & Partners, LLP, Newburgh (George A. Kohl II of
counsel), for appellant-respondent.

      Cerussi & Spring, PC, White Plains (Joseph Porretto of
counsel), for defendants and third-party plaintiffs-respondents-
appellants.

      Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains
(Judy C. Selmeci of counsel), for third-party defendant-
respondent.

                             __________
                               -2-                517698

Devine, J.

      (1) Appeal from an order of the Supreme Court (Zwack, J.),
entered April 29, 2013 in Ulster County, which, among other
things, granted defendants' motion for, among other things,
summary judgment dismissing the complaint, and (2) cross appeals
from the judgment entered thereon.

      In 2008, plaintiff was injured after she fell off a ladder
that accessed a storage loft while working for third-party
defendant. The loft was located in the backroom of third-party
defendant's store, in a leased space in a mall owned and operated
by defendants. Plaintiff commenced this action against
defendants alleging that its negligence in constructing or
maintaining the ladder was the proximate cause of her injuries.1
Defendants thereafter impleaded third-party defendant, seeking
contribution or contractual indemnification. Third-party
defendant answered and asserted counterclaims for breach of
contract and indemnification. Defendants then moved for summary
judgment dismissing plaintiff's complaint and for contractual
indemnification in their favor against third-party defendant,
including the reimbursement of litigation costs. Third-party
defendant thereafter cross-moved for summary judgment dismissing
the third-party complaint and for summary judgment on its
counterclaims. Supreme Court granted defendants' motion for
summary judgment and, based upon its dismissal of plaintiff's
complaint, determined that third-party defendant's cross motion
for summary judgment was moot. Plaintiff now appeals from
Supreme Court's order and ensuing judgment. Defendants cross
appeal from the judgment, claiming that the court ignored their
request for, among other things, litigation costs.

       Generally, "an out-of-possession landlord is not
responsible for dangerous conditions existing upon leased
premises after possession of the premises has been transferred to
the tenant" (Davison v Wiggand, 247 AD2d 700, 701 [1998], lv


     1
        Plaintiff initially brought separate actions against each
defendant, but these actions were subsequently consolidated by
stipulation.
                              -3-                517698

denied 94 NY2d 751 [1999]; accord Patrick v Grimaldi, 100 AD3d
1320, 1321 [2012]. Exceptions to the general rule include
situations where the landlord has maintained control of the
premises, has specifically contracted to repair or maintain the
property or has affirmatively created the dangerous condition
(see Vanderlyn v Daly, 97 AD3d 1053, 1055 [2012], lv denied 20
NY3d 853 [2012]; Stickles v Fuller, 9 AD3d 599, 600 [2004]).
Regarding a contractual obligation to maintain or repair the
ladder, third-party defendant agreed to be responsible for
repairing and maintaining, among other things, the "systems and
improvements located within and exclusively serving the
[p]remises."

      The record reflects that the loft and access ladder were
improvements added to the back room of the subject premises in
2001 at the request of a former tenant, and that they are both
solely located within and exclusively serve the premises.
Accordingly, inasmuch as "a written agreement that is complete,
clear and unambiguous on its face must be enforced according to
the plain meaning of its terms" (Greenfield v Philles Records, 98
NY2d 562, 569 [2002]; accord Herbert v Schodack Exit Ten, LLC,
107 AD3d 1119, 1120 [2013]), we agree with Supreme Court that
there are no triable issues of fact as to whether defendants were
contractually responsible for the maintenance and repair of the
ladder.

      Further, defendants were entitled to summary judgment as to
the question of whether they were liable for plaintiff's injuries
based upon the provision in the lease retaining their right to
enter the premises to make repairs. While a landlord who retains
the right to enter the leased property to make repairs may be
liable to injuries to third parties (see Brown v BT-Newyo, LLC,
93 AD3d 1138, 1138 [2012], lv denied 19 NY3d 815 [2012]; Sauer v
Mannino, 309 AD2d 1053, 1053-1054 [2003]), "only a significant
structural or design defect that is contrary to a specific
statutory safety provision will support imposition of liability
against the landlord" (Velazquez v Tyler Graphics, 214 AD2d 489,
489 [1995]; accord Brown v BT-Newyo, LLC, 93 AD3d at 1139).
Here, plaintiff's expert opined that the condition of the ladder
violated regulations found in the New York State Uniform Fire
Prevention and Building Code (see 19 NYCRR 1219.1), the New York
                              -4-                517698

State Building Code and the Property Maintenance Code of New
York. However, inasmuch as a violation of a regulation is
insufficient to impose liability on an out-of-possession landlord
pursuant to a reserved right to enter the premises (see Brown v
BT-Newyo, LLC, 93 AD3d at 1139; Velazquez v Tyler Graphics, 214
AD2d at 490), plaintiff failed to raise a triable issue of fact.

      We reach a different conclusion, however, as to whether
defendants created the dangerous condition. Liability to a
lessee's employee for personal injuries may attach if the out-of-
possession landlord affirmatively created the dangerous condition
(see Ferro v Burton, 45 AD3d 1454, 1455 [2007]; Stickles v
Fuller, 9 AD3d at 600; Arvanete v Green St. Realty, 241 AD2d 909,
909 [1997]). Although the former tenant hired an architect to
design the plans for the premises, including the loft area and
access ladder, defendants contracted and paid for the
construction. Further, the record reflects that defendants took
an active role in the construction project. Defendants and the
tenant agreed to make changes to the architectural plans in order
to cut costs, including changes to the design of the loft. While
the architectural plan called for the ladder to be "mechanically
fasten[ed] to surface of floor slab and at top edge to wood
platform," plaintiff's expert opined, based upon his inspection
of the site of the alleged accident, that the right stringer of
the ladder was secured by three screws to an adjacent wall, not
to the wood platform, and that the left stringer was not secured
to the upper landing at all. Further, there was no evidence that
the ladder was secured to the floor slab. Inasmuch as plaintiff
contends that her fall was caused by the ladder shifting away
from the loft, causing her to lose her balance, and viewing the
evidence in the light most favorable to her, we find a triable
issue of fact exists as to whether the ladder was constructed
negligently and as to whether defendants created the dangerous
condition (see Stickles v Fuller, 9 AD3d at 600-601).2 Finally,


    2
        To the extent that defendants contend that, inasmuch as
third-party defendant leased the premises pursuant to an "as is"
clause, they were not liable for plaintiff's injuries, such a
clause would only serve to bar a claim against defendants by
third-party defendant, and not bar a claim made by an employee of
                              -5-                  517698

based upon the applicable provisions of the lease agreement, our
finding that an issue of fact exists as to defendants' liability
renders their motion for summary judgment as to their third-party
action premature (see Mesler v PODD LLC, 89 AD3d 1533, 1535
[2011]; Maldonado v South Bronx Dev. Corp., 66 AD3d 612, 613
[2009]).

     Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur.



      ORDERED that the order and judgment are modified, on the
law, without costs, by reversing so much thereof as granted
defendants' motion for summary judgment as to the allegation that
defendants created a dangerous condition; motion denied to that
extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




a lessee (see Brady v Cocozzo, 174 AD2d 814, 815 [1991]).
