

Gil v M. Sopher & Co., LLC (2016 NY Slip Op 01622)





Gil v M. Sopher & Co., LLC


2016 NY Slip Op 01622


Decided on March 8, 2016


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 March 8, 2016

Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.


458 304650/12

[*1]Yajaira Gil, Plaintiff-Appellant,
vM. Sopher & Company, LLC, Defendant-Respondent.


Nicole R. Kilburg, New York, for appellant.
Daniel J. Sweeney & Associates, PLLC, White Plains (Brian M. Hussey of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 7, 2014, which granted defendant's motion for summary judgment, deemed appeal from judgment, same court and Justice, entered November 3, 2014, dismissing the complaint (CPLR 5520[c]), and, so considered, judgment unanimously reversed, on the law, without costs, the complaint reinstated, and defendant's motion denied.
Plaintiff's bill of particulars and deposition testimony and her husband's affidavit raise an issue of fact as to whether defendant was contractually obligated to make repairs and/or maintain the premises or had a contractual right to reenter, inspect and make needed repairs at the tenant's expense (see Johnson v Urena Serv. Ctr. , 227 AD2d 325 [1st Dept 1996], lv denied  88 NY2d 814 [1996]). There is evidence that in a prior commercial rent proceeding in Civil Court, that court determined there were several structural problems in the premises where plaintiff fell, among them an unstable stairwell. There is sufficient evidence to also raise an issue of fact whether or not the structural damage alleged (unstable basement stairs) was a significant factor in how the accident happened, regardless of whether or not the stairs in the leased premises at issue fall within Administrative Code of the City of New York § 27-375(f).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 8, 2016
DEPUTY CLERK


