Upon the foregoing papers, defendant Dr. Gennadiy Zvi Broitman, s/h/a Dr. Geenadiy Z. Broitman ("Dr. Broitman") moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiffs Josephina Sosa ("plaintiff") and Raphael Ramirez (collectively "plaintiffs"). Defendant 623 Brighton Realty Corp. ("623 Brighton") cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint and all cross-claims asserted against it.

This is an action by plaintiffs to recover damages for personal injuries Josephina Sosa ("plaintiff") allegedly sustained while descending the interior staircase connecting the first and second floors of a two-story building (the "premises"), located at 623 Brighton Beach Avenue in Kings County, and owned by 623 Brighton.

On December 2, 2003 plaintiff visited the office of Dr. Broitman, a dentist, located on the second floor of the building. When deposed, plaintiff testified that when she left the office she began to walk down the interior staircase. While on the top step, she grabbed onto a loose handrail, tripped on a metal strip and fell. Plaintiff described the metal strip as elevated, about one and one-half inches, and extending across the top step. [*2]It appears from plaintiff's testimony that, approximately six months prior to her fall, plaintiff noticed the elevated metal strip on the top step but ^[FN1] made no complaint to anyone in the building.

Sara Rosenfeld, the sole shareholder of 623 Brighton Realty Corporation, testified that on or before December 2, 2003, the ground floor of the building was rented to a fruit store and a beauty shop. On the second floor, one office was leased to Dr. Broitman and the other to A&R United Group, Inc. ("A&R"). A door on the Seventh Street side of the building

leads to the subject staircase. Both of the second floor tenants and their clients used this staircase to access the offices on the second floor.

According to Ms. Rosenfeld, the second floor tenants were responsible for maintenance and repair of the staircase. Before the date of the accident, Ms. Rosenfeld walked through the building each month, walked up and down the staircase, held the handrail and looked at the stairs. She never observed a broken stair or a loose handrail, and never received a complaint about the staircase or handrail prior to plaintiff's accident.

Dr. Broitman testified that he did not notice anything wrong with the handrail or with the metal stripping. He made no complaints about the staircase, caused no repairs to be made to the staircase, hired no one to clean the staircase and thought that the staircase was being cleaned by the owner. According to Dr. Broitman, he had no agreement with the owner to clean the staircase, and never saw A&R or anyone hired by it cleaning the staircase.

According to Dr. Broitman, plaintiff visited his office on at least six or eight occasions prior to the accident and never complained to him about the stairs or handrail. Nor did plaintiff register a complaint immediately after her fall. Following plaintiff's accident, Dr. Broitman observed that the steps were in good condition. He never received a complaint about the staircase or handrail and did not observe anyone repair or paint the staircase or the handrail.

Dr. Broitman's seven-year commercial lease is dated June 11, 2002. A handwritten notation on the lease reads "Tenant is responsible for all repairs in leased premises[,] garbage disposal & electric bills. Tenant is responsible to maintain hallway clean." Dr. Broitman testified that the last sentence referred to the second floor hallway outside of his office, namely "the part [of the hallway] . . . past the stairs, the part leading to [his] door." He testified that his secretary vacuumed the hallway outside of his office daily.

By summons and complaint, dated February 26, 2004, plaintiffs commenced this action against 623 Brighton. On or about December 22, 2004, plaintiffs commenced a similar action against Dr. Broitman and 623 Brighton. Both defendants joined issue by service of verified answers. The two actions were consolidated by order entered July 13, [*3]2006 (Hurkin-Torres, J.). Following depositions, a note of issue was filed on or about December 21, 2006. The instant motions are now before the court.

In support of summary judgment, Dr. Broitman argues that he owed no duty to plaintiff to repair or maintain the staircase since he leased only the office portion of the premises and not the staircase. He asserts that even assuming his responsibility for the "cleanliness" of the hallway outside of his office, there is no bases for holding him responsible for maintaining the common staircase. Nor, is there evidence that he had actual or constructive notice of the allegedly dangerous condition.

In opposition, plaintiffs argue that the lease provides, in substance, that Dr. Broitman was responsible for all repairs in the leased premises and was required "to maintain the hallway clean." Plaintiff also asserts that her testimony that she saw the condition of the defective step and handrail at least six months before her accident demonstrates that Dr. Broitman had constructive notice of the allegedly defective conditions.^[FN2]

In reply, Dr. Broitman reiterates that since the lease merely states that "tenant is responsible to maintain hallway clean," and describes the demised premises as "623 Brighton Beach Ave 2FL. Back Unit" the lease only obligates him to maintain his dental office, as opposed to the common staircase. He states that the provision in the lease which provides, in substance, that the tenant is responsible for all repairs to the leased premises, refers only to repairs within the leased premises, namely his office.

"[L]iability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of the property. Should none of these factors be present, liability cannot be imposed" (Warren v Wilmorite Inc., 211 AD2d 904, 905[1995] [internal citations and quotations omitted]). "Alternatively, liability may be imposed where a landowner or a lessee creates a defective or dangerous condition on the property" (id.). Here, there is no evidence that Dr. Broitman created the allegedly defective conditions. Further, Dr. Broitman has made a prima facie showing that pursuant to his lease with 623 Brighton, the staircase where plaintiff fell was not part of the premises leased to him and, thus, not under his control. In this regard, the lease requires the tenant to:

"take good care of the demised premises, fixtures and appurtenances and all alterations, additions and improvements to either; make all repairs in and about the same [*4]necessary to preserve them in good order and condition, which repairs shall be in quality and class, equal to the original work; promptly pay the expense of such repairs . . ."(emphasis supplied)

The demised premises are described as "623 Brighton Beach Ave. 2FL Back Unit" "to be used and occupied by . . . Dr. Broitman (AS DENTAL OFFICE)." While the lease also states that "tenant is responsible to maintain hallway clean," this obligation does not impose upon Dr. Broitman responsibility for maintaining or repairing the staircase. A hallway is not a staircase and, as Dr. Broitman points out, the third paragraph of the lease makes a distinction between hallways and stairways. Thus, Dr. Broitman had no duty to maintain or repair the staircase (Rosato v Foodtown, 208 AD2d 705 [1994]; Dunn v Reardon, 184 AD2d 1064 [1992]). In addition, since the lease is unambiguous, the parol evidence proffered by the plaintiffs is inadmissible (Ahava Dairy Prods. Corp. v Trident Leasing Corp., 1 AD3d 546, 546-547 [2003]).

Moreover, the lease requires that Dr. Broitman permit the landlord to enter the demised premises "for the purposes of inspection," to "suffer the Landlord to make repairs and improvements to all parts of the building" and to permit the landlord to "repair and replace pipes and conduits in the demised premises and to the floors above and below . . ." (emphasis added). "An out-of-possession landlord may be found liable for failure to repair a dangerous condition, of which it 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'" (Wolfe v Long Is. Power Auth., 34 AD3d 575, 576 [2006], citing Chapman v Silber, 97 NY2d 9, 19 [2001]). 623 Brighton retained the right to make repairs and improvements "to all parts of the building." Dr. Broitman had no duty to maintain the stairway and, therefore, cannot be held liable for plaintiffs fall (see Soto v Michael's New York, Inc., 282 AD2d 300 [2001]).

623 Brighton first argues that good cause exists for failure to timely file its summary judgment motion. 623 Brighton states that plaintiffs filed their note of issue on December 22, 2006 and that on December 28, 2006 it moved to vacate the note of issue because the deposition of Dr. Broitman had not been conducted. According to 623 Brighton, Dr. Broitman was deposed on January 24, 2007, however a copy of the transcript of his deposition testimony was not provided until some time after April 19, 2007. 623 Brighton, which had refused to withdraw its motion to vacate the note of issue until the transcript was provided, withdrew its motion to vacate on April 19, 2007 and, on June 15, 2007, filed the instant motion for summary judgement.

As to the merits, 623 Brighton argues that as an out-of-possession landlord, Ms. Rosenfeld did not maintain control of the premises and, therefore, is not liable for the claimed defect. 623 Brighton urges that it is entitled to contractual and common-law indemnification from Dr. Broitman relying, in part, on the parties' lease. [*5]

In opposition, plaintiffs argue that based upon plaintiff's testimony that she observed the condition six months before she fell, and Ms. Rosenfeld's testimony that she performed a walked-through of the building each month, a question of fact exists as to whether 623 Brighton had actual or constructive notice of the defects which caused her accident.

In reply, 623 Brighton contends that it contracted all responsibility for repairs to its tenants. 623 Brighton asserts that plaintiff's testimony that she saw the alleged defects six months prior to her accident fails to establish notice as to 623 Brighton since plaintiff never made any complaints about the staircase and does not submit evidence that anyone else complained about it.

As an initial matter, 623 Brighton establishes good cause for its late notice of cross-motion.^[FN3] Rule 13 of the Uniform Trial Rules of the Supreme Court, Civil Term, Kings County required that the summary judgment motion be made within 60 days of the filing of the note of issue. An extension of the time to file such a motion may be granted upon a showing of "good cause" (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648 [2004]). "Good cause" under CPLR 3212(a) requires a satisfactory explanation for the untimeliness of the motion. "In the absence of such a good cause' showing, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (Thompson v NY City Bd. of Educ., 10 AD3d 650, 651 [2004]). Good cause may exist where a movant delays making its motion in order to complete outstanding depositions (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]) or to await the receipt of deposition transcripts relevant to the motion (see Filannino v Triborough Bridge and Tunnel Authority, 34 AD3d at 282; Burnell v Huneau, 1 AD3d 758 [2003]).

Here, the note of issue was filed on December 22, 2006. Motions for summary judgment were to be filed by February 22, 2006 in accordance with Rule 13. However, it is undisputed that 623 Brighton had not received copies of the required deposition transcript of Dr. Broitman. 623 Brighton received the transcript sometime after April 19th and filed its motion within sixty days thereafter. 623 Brighton establishes "good cause" for its delay.

As noted above, the lease requires Dr. Broitman to permit the landlord to enter the premises "for the purposes of inspection" and to "suffer the Landlord to make repairs and improvements to all parts of the building" as well as to permit the landlord to "repair and replace pipes and conduits in the demised premises and to the floors above and below . . ." (emphasis added). While a limited right of entry does not render an out of possession landlord liable for defective conditions (D'Orlando v Port Auth., 250 AD2d 805, 805-806 [*6][1998]), here, 623 Brighton also retained the right to make repairs and improvements "to all parts of the building," as well as to make structural repairs ("replace pipes and conduits in the demised premises"). Thus, it cannot be said that 623 Brighton relinquished control of the subject staircase (Wolfe, 34 AD3d at 576).

Further, if credited by the trier of fact, plaintiff's testimony that she saw the loose handrail and the elevated metal six months prior to her accident, along with Ms. Rosenberg's testimony that she inspected the staircase regularly, raises a question of fact as to whether 623 Brighton had constructive notice of the allegedly defective handrail and step.

Finally, the indemnification provision in the second paragraph of the lease, relied on by 623 Brighton, is unenforceable because it purports to shift responsibility for third-party claims to the tenant regardless of the landlord's own negligence (Wolfe, 34 AD3d at 576; GOL §5-321). Accordingly, it is

ORDERED, that the motion of the defendant Dr. Gennadiy Z. Broitman for summary judgment is granted, and the complaint is dismissed as against him; and it is further

ORDERED, that the cross-motion of the defendant 623 Brighton for summary judgment is denied; and it is further

ORDERED, that the case be over-ridden to the Jury Co-ordinating Part in due course.

E N T E R,

J. S. C.