Starr v. Holes

Plaintiff commenced this action, individually and on behalf of his daughter, seeking damages for burn injuries sustained by his daughter when she fell into a basin of water. The basin had been placed on a grate covering a floor furnace in an apartment leased to defendants John and Wendy Lively by Roger H. Holes (defendant). Supreme Court erred in granting defendant’s motion seeking summary judgment dismissing the *1396complaint against him. “While an out-of-possession landlord generally will not be responsible for dangerous conditions existing on leased premises, it is settled that [a] landlord may be liable for failing to repair a dangerous condition, of which [he or she] has notice, on leased premises if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs” (Oates v Iacovelli, 80 AD3d 1059, 1060 [2011] [internal quotation marks omitted]). Defendant failed to establish as a matter of law that he lacked control of the premises and thus that he could not be held liable in this case (see Rose v Niagara Mohawk Power Corp., 298 AD2d 834 [2002]), and his own submissions raise a triable issue of fact whether he had notice of the allegedly dangerous condition (see Finch v Ryder Truck Rental, Inc., 68 AD3d 1754, 1754-1755 [2009]). Defendant also failed to establish that section M1408 of the applicable Residential Code of New York State does not apply to the subject floor furnace (see Brice v Vermeulen, 74 AD3d 858 [2010]), or that the alleged violation of that section was not a proximate cause of the injuries sustained by plaintiffs daughter (see Sanchez v Irun, 83 AD3d 611, 612 [2011]). Present— Centra, J.P, Fahey, Sconiers, Green and Martoche, JJ.