Appeal by defendant from an order of the Civil Court, Queens County (M. Grays, J.), entered December 19, 2002, which denied his motion for summary judgment.

Order reversed without costs and defendant's motion for summary judgment dismissing the action granted.

Plaintiff commenced the instant action to recover damages for personal injuries she sustained when she fell while descending a staircase in a building owned by
defendant. She claimed that she slipped on liquid which was present on one of the stairs. Defendant's motion for summary judgment was denied.

Viewing the evidence in the light most favorable to plaintiff, the non-moving party, and resolving all reasonable inferences in her favor (see Mitchell v Fiorini Landscape, 253 AD2d 860 [1998]), we find that the ceiling above the stairs leaked and she slipped upon a liquid located on the stairs which had not been present half an hour earlier. However, there is no evidence that defendant possessed constructive notice of the condition which caused plaintiff to fall (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Nor is there any evidence that defendant created the condition or had actual notice of its existence. As a result, defendant's motion for summary judgment dismissing the action should have been granted (Galietta v New York Sports Club, ___ AD3d ___ [2d Dept, Feb. 17, 2004]; Gloria v MGM Emerald Enters., 298 AD2d 355 [2002]).

Pesce, P.J., and Golia, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J. dissents and votes to affirm the order denying defendant's motion for summary judgment in the following memorandum:

Defendant's motion for summary judgment was premised upon his status as an out-of-possession landlord. "A landlord is generally not liable for negligence with respect to the condition of property after the transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect and make needed repairs at the tenant's expense and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision" (Lane v Fisher Park Lane Co., 276 AD2d 136, 141 [2000] [quotation marks and citations omitted]). However, the defendant herein failed to produce a copy of the lease or otherwise establish his lack of responsibility with respect to the property. As a result, defendant did not demonstrate his prima facie entitlement to judgment as a matter of law (see Gibson v Bally Total Fitness Corp., 1 AD3d 477, 478 [2003]; Spencer v Schwarzman, LLC, 309 AD2d 852, 853 [2003]; Jackson v United States Tennis Assn., 294 AD2d 470, 471 [2002]). Therefore, I would affirm the denial of defendant's motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).
Decision Date: April 09, 2004