Upon the foregoing papers it is ordered that the motion is granted.

Plaintiff in this negligence action seeks damages for personal injuries sustained on May 22, 2007 at premises known as 248-08 Union Turnpike in Bellerose, New York. The premises are owned and managed by George L. Malin under the name "Essex Management Co." At the time of the incident, the premises were leased to Vasant Bhavan, Inc., which operated a restaurant thereat. Plaintiff, an employee of the restaurant, was injured while cooking at the restaurant. The complaint alleges, in substance, that the stove used by plaintiff was defective in that one of the four legs of the stove came off causing the pot with boiling water to fall onto plaintiff during the course of his employment. Defendants contend that they did not supply the defective stove to the lessee and were not obligated under the terms of the lease to perform such maintenance and repairs and, therefore, are not liable. Plaintiff opposes the motion.

Defendants move to dismiss the within action in its entirety pursuant CPLR 3211 (a)(1), based upon the terms of a commercial lease. Under the terms of the lease between the defendants and the non-appearing co-defendant restaurant owner, the tenant was responsible for taking good care of the premises and making all repairs inside of the premises. Pursuant to paragraph "37," neither landlord nor the landlord's agents have made any representations or [*2]promises with respect to the physical condition of the building or the demised premises or anything or matter affecting or relating to the demised premises except as expressly set forth in the lease. In this regard, paragraph "37" continues to state that the tenant has inspected the building and the demised premises and agrees to take same "as is" and acknowledges that the taking of possession of the premises by the tenant shall be conclusive evidence that the demised premises are in good and satisfactory condition. Furthermore, paragraph "71" of the lease states that the tenant shall take good care of the premises and make all repairs, that in addition thereto, the tenant agrees that tenant shall keep, put, replace and maintain the demised premises and all tenant's equipment, fixtures, appurtenances, installations and improvements in good repair, good working order and in good condition. Paragraph "71(b)" adds that it is the intention of the parties and the parties agree that the sole repairs which the landlord shall make to the demised premises shall be structural repairs to the exterior walls of the building, the foundation and the roof. Finally, paragraph "90" of the lease provides that the landlord has advised the tenant that the restaurant equipment and fixtures presently located in the store may not be owned by the landlord and the landlord makes no representation or warranties as to the ownership or condition of the equipment; in the event tenant elects to use any of the equipment in the store, such use shall be at tenant's own risk and any maintenance, repairs or replacements by the tenant shall be made at the tenant's own cost and expense.

"[A]n out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises" (Dalzell v McDonald's Corp., 220 AD2d 638, 639 [1995]; see Sangiorgio v Ace Towing & Recovery, 13 AD3d 433, 433-434 [2004]; Ingargiola v Waheguru Mgt., 5 AD3d 732, 733 [2004]; Thompson v Port Auth. of NY & N.J., 305 AD2d 581 [2003]). Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when "a specific statutory violation exists and there is a significant structural or design defect" (Stark v Port Auth. of NY & N.J., 224 AD2d 681, 682 [1996]; see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566 [1987]; Sangiorgio v Ace Towing & Recovery, supra; Ingargiola v Waheguru Mgt., supra; Thompson v Port Auth. of NY & N.J., supra).

Here, defendants/out-of-possession landlords of the subject premises rented by Chola Samrat, established their prima facie entitlement to judgment as a matter of law by demonstrating that they relinquished control of the leased premises, did not provide the alleged defective stove, were not obligated under the terms of the lease to maintain or repair the premises, and did not violate a specific statutory provision (see O'Connell v L.B. Realty Co., 50 AD3d 752 [2008]; Gavallas v Health Ins. Plan of Greater NY, 35 AD3d 657, 658 [2006]). Defendants established their lack of ownership of the stove in question. Based upon the undisputed deposition testimony of both owners George L. Malin and William N. Weidman, neither ever purchased any stoves to be used at the premises or brought any stoves onto the premises, received any complaints about stoves at the premises and did not perform any repairs in the kitchen of the premises. In fact, defendants testified that when the premises were first leased (to the prior tenant), there was no kitchen on the premises and that defendants did not build a kitchen on the premises. [*3]Furthermore, the tenant controlled the stove at its restaurant, and a defective stove does not constitute a significant structural or design defect that violates a specific statutory building code provision (see Reyes v Morton Williams Associated Supermarkets, Inc., 50 AD3d 496 [2008] ).

Plaintiff's submissions in opposition are insufficient to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). To defeat summary judgment, plaintiff had to raise a triable issue of fact not only as to whether defendants retained a right to enter the premises but also whether the alleged defect constituted a significant structural or design defect which violated a specific statutory safety provision (see Sangiorgio v Ace Towing & Recovery, supra; Ingargiola v Waheguru Mgt., supra; Thompson v Port Auth. of NY & N.J., supra; Stark v Port Auth. of NY & N.J., supra). Here, none of the building code provisions relied upon by plaintiff are applicable under the instant circumstances. As plaintiff did not allege a violation of any statutory provision sufficient to impose liability (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 [1987]), nor the existence of a significant structural or design defect, the motion by defendants for summary judgment dismissing the complaint insofar as asserted against them, is granted. Once it is established that the out-of-possession landlord had relinquished control over the premises and, thus, had no duty to maintain or repair the premises, the question of notice is rendered academic (see Pulka v Edelman, 40 NY2d 781, 782 [1976]; Bernstein v Starrett City, 303 AD2d 530, 531 [2003]).

Dated: October 29, 2009

J.S.C.