Behr v. Dana Realty Corp. ( 1965 )

Judgment unanimously reversed, on the law, with $50 costs to appellant, and the complaint dismissed. The defendant landlord is not in possession of the premises here involved, it having leased them to a tenant who is in possession. They are being maintained by the tenant for private rather than public use. The landlord would only be liable for injuries sustained on these premises due to a defective condition if it retained “ a measure of occupation and control over the leased premises” {Be Clara v. Barber S.S. Lines, 309 N. Y. 620, 628). It appearing that the landlord did not exercise such measure of control there was no duty arising from this defendant to the plaintiff. Accordingly, the complaint should be dismissed. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ.