

Syrko v Jertom Inc. (2016 NY Slip Op 04448)





Syrko v Jertom Inc.


2016 NY Slip Op 04448


Decided on June 9, 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 June 9, 2016

Mazzarelli, J.P., Acosta, Saxe, Kapnick, Kahn, JJ.


1414 302168/12

[*1]Jerry Michael Syrko, Plaintiff,
vJertom Incorporated doing business as Tom & Jerry's Bar and Grill, Defendant-Appellant, Silver Lake Realty, LLC, et al., Defendants, Brewster Plaza, LLC, et al., Defendants-Respondents.


Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant.
Law Offices of Tobias & Kuhn, New York (Cathleen A. Giannetta of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about March 18, 2015, which granted defendant Brewster Plaza, LLC's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.
Defendant Brewster Plaza, the owner of premises leased by defendant Jertom Incorporated and operated as a bar and restaurant, established prima facie that it was not responsible for repairing the leak in the window that Jertom claims was the source of the pool of water in which plaintiff allegedly slipped. The lease between Brewster Plaza and Jertom provides that Brewster Plaza is responsible only for structural repairs, the definition of which does not include windows. Nor did Jertom identify any significant structural or design defect that was contrary to a specific statutory safety provision (see Quing Sui Li v 37-65 LLC, 114 AD3d 538 [1st Dept 2014]). As Brewster Plaza owed no duty to plaintiff to repair the window, whether it had actual or constructive notice of the leak is immaterial (see Podel v Glimmer Five, LLC, 117 AD3d 579 [1st Dept 2014], lv denied 24 NY3d 903 [2014]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 9, 2016
CLERK


