Fischbein v. 1498 Third Realty Corp.
Court: Appellate Division of the Supreme Court of the State of New York; March 7, 1996; New York; State Appellate Court
Plaintiff suffered a fractured left ankle after slipping on a wet spot in a bar operated by C&E Corporation, which leased the premises from 1498 Third Realty Corporation (defendant). The Supreme Court granted the defendant's motion for summary judgment, dismissing the complaint. The ruling is based on the principle that an owner not in possession but retaining the right to enter for repairs is liable only for injuries stemming from structural or design defects in the property. The court determined that the plaintiff's injury was not due to a structural defect but rather the tenant's alleged failure to maintain the premises. Additionally, the plaintiff's argument regarding Real Property Law § 231(2) was raised for the first time on appeal and therefore deemed unpreserved for review. The order was affirmed by the appellate court, with Justices Pine, Fallon, Callahan, Balio, and Boehm concurring.