                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 20, 2014                   518191
________________________________

DAVID WAYMAN,
                    Plaintiff,
     v

ROY STANLEY, INC., et al.,
                    Appellants,
      and                                   MEMORANDUM AND ORDER

SAMUEL MITCHELL et al.,
                    Respondents.

(And a Third-Party Action.)
________________________________


Calendar Date:   October 9, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


      Costello, Cooney & Fearon, PLLC, Syracuse (Jennifer L. Wang
of counsel), for appellants.

      Sugarman Law Firm, LLP, Syracuse (Leigh Leiberman of
counsel), for respondents.

                             __________


Lynch, J.

      Appeal from that part of an order of the Supreme Court
(Rumsey, J.), entered March 11, 2013 in Cortland County, which
granted a motion by defendants Samuel Mitchell and S.J.M.
Entertainment Corporation for summary judgment dismissing the
complaint against them.

      In November 2006, while working as a manager of a movie
theater, plaintiff broke his arm when he fell down an interior
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stairway leading to the theater's projection room. The theater
building was owned by defendants Samuel Mitchell and S.J.M.
Entertainment Corporation (hereinafter collectively referred to
as SJM) and leased to plaintiff's employer. SJM retained
defendants Roy Stanley, Inc. and M.W. Kronek, Inc. (hereinafter
collectively referred to as Stanley) to build the stairway in
1996 as part of a renovation and addition project. The stairway,
which was not accessible to members of the public, consisted of
three wooden steps to a concrete landing. The riser from the
third step to the landing was constructed of concrete blocks.
Plaintiff, who was alone at the time of the fall, was walking
from the landing down the steps to the projector room when one of
the concrete facing blocks dislodged, causing him to fall.

      Plaintiff commenced this negligence action against SJM and
Stanley. Following joinder of issue and discovery, SJM and
Stanley each moved for summary judgment dismissing the complaint.
For its part, SJM argued that as an out-of-possession landlord,
it was not liable for plaintiff's injuries and lacked actual or
constructive notice of the allegedly dangerous condition of the
step. Supreme Court granted SJM's motion and partially granted
Stanley's motion by dismissing plaintiff's complaint against M.W.
Kronek, Inc. Stanley now appeals from that part of the order as
granted SJM's motion.

      We affirm. As a general rule, "'an out-of-possession
landlord who relinquishes control of the premises and is not
contractually obligated to repair unsafe conditions is not liable
to employees of a lessee for personal injuries caused by an
unsafe condition existing on the premises'" (Inger v PCK Dev.
Co., LLC, 97 AD3d 895, 896 [2012], lv denied 19 NY3d 816 [2012],
quoting De Brino v Benequista & Benequista Realty, 175 AD2d 446,
447 [1991]). There are exceptions. For example, a landlord has
a "'nondelegable duty to provide the public with a reasonably
safe premises and a safe means of ingress and egress'" (Reynolds
v Sead Dev. Group, 257 AD2d 940, 940 [1999], quoting June v
Zikakis Chevrolet, 199 AD2d 907, 909 [1993]). Liability may
attach where the out-of-possession landlord has contracted to
repair or maintain the premises, has affirmatively created the
condition (see Stickles v Fuller, 9 AD3d 599, 600 [2004]; Webb v
Audi, 208 AD2d 1122, 1122 [1994]) or has retained a right to
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reenter the premises for inspection or repairs and the injury
arises from a structural defect or specific statutory violation
(see Boice v PCK Dev. Co., LLC, 121 AD3d 1246, ___, 2014 NY Slip
Op 07042, *2 [2014]; Brown v BT-Newyo, LLC, 93 AD3d 1138, 1138-
1139 [2012], lv denied 19 NY3d 815 [2012]).

      In our view, Stanley has not demonstrated that any
exception to the general rule applies here. SJM's nondelegable
duty to the public is not relevant because plaintiff's injury did
not occur in an area open to the public (see De Brino v
Benequista & Benequista Realty, Inc., 175 AD2d at 447). There is
no record basis to conclude that SJM contracted to repair or
maintain the premises after it entered into the lease with
plaintiff's employer in 1999. Rather, the lease between SJM and
plaintiff's employer divests the former of any obligation to
maintain the premises. Plaintiff's employer confirmed during his
examination before trial that he did all the maintenance and
repair work and that SJM never paid for any repairs or
maintenance during the term of the lease. Although SJM retained
a right under the lease to re-enter the premises, this "'is
insufficient to establish the requisite degree of control
necessary for the imposition of liability with respect to an
out-of-possession landlord'" (Hart v O'Brien, 72 AD3d 1257, 1259
[2010], quoting Grady v Hoffman, 63 AD3d 1266, 1268 [2009]).

      We also agree with Supreme Court that the condition of the
stairway was not sufficient to impose liability upon SJM.
Assuming, without deciding, that the stairway did not conform to
the New York State Building Code provision with regard to the
width of stair treads (see 9 NYCRR former 713.1), the condition
does not constitute a significant structural defect or statutory
violation as would be necessary to find that SJM had constructive
notice of the loose concrete block (see Boice v PCK Dev. Co.,
LLC, 2014 NY Slip Op 07042 at *2; Drotar v 60 Sweet Thing, Inc.,
106 AD3d 426, 427 [2013]; Brown v BT-Newyo, LLC, 93 AD3d at
1139). Accepting plaintiff's descriptions of the accident, the
stairway and the condition of the step, his fall was not
attributable to the width of the tread, but rather its
instability. Finally, Supreme Court properly determined that SJM
did not create the allegedly dangerous condition. Plaintiff's
expert does not assert that the stairs were negligently designed,
                                -4-                518191

but rather that they were not constructed in accordance with the
specifications. Although SJM retained Stanley to construct the
stairway in accordance with the architectural plans, as a general
rule, SJM is not liable for the independent contractor's alleged
negligent construction (see D'Allaird v Markline Sales, Inc., 104
AD3d 1110, 1112 [2013]).1 Although SJM provided the
architectural plans when the work commenced, Stanley's owner
acknowledged that SJM's only involvement with the construction
was to pay for it, SJM was not at the work site and did not
provide any equipment or materials, and Stanley did not discuss
the stairway construction with Mitchell. We therefore agree with
Supreme Court that there was no evidence to support a finding
that SJM had any right to supervise or control the work being
performed (see Richardson v Simone, 275 AD2d 576, 576,[2000];
compare, Boise v PACK Dev. Co., LLC, 2014 NY Slip Op 07042 at *2;
Stickles v Fuller, 9 AD3d 599 at 600-601).

        Stein, J.P., Garry, Rose and Devine, JJ., concur.




    1
        While an exception to this rule may exist where the
injuries are caused by a defect created by an independent
contractor and when the owner who retained the contractor is
under a duty to keep the premises safe (see June v Zikakis
Chevrolet, 199 AD2d 907, 909 [1993]), it is not applicable here
because SJM is an out-of-possession landlord, the alleged design
and construction defect existed prior to the leasehold and
plaintiff was injured in an area that was not accessible to the
public (see De Brino v Benequista & Benequista Realty, Inc., 175
AD2d at 446; Mancini v Cappiello Realty Corp., 144 AD2d 154, 155
[1988], lv denied 73 NY2d 708 [1989]).
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ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
