Tkach v. Montefiore Hospital for Chronic Diseases , 34 N.Y.S.2d 657 ( 1942 )

Dore, J.

Under section 78 of the Multiple Dwelling Law, the owner of a multiple dwelling is responsible for compliance with the requirement to keep such dwelling and every part thereof in good repair notwithstanding that the owner has leased the entire building. (Weiner v. Leroco Realty Corp., 279 N. Y. 127, 130; Multiple Dwelling Law, § 78.) In the Weiner case (supra) the Court of Appeals said: “By leasing the' premises to some irresponsible person, owners could very readily shift the burden and nullify the purposes of the law.” In Becker v. Manufacturers Trust Co. (262 App. Div. 525) this court merely held that the charge of the trial court in that case, instructing the jury as a matter of law that actual notice to the lessee was actual notice to the owner, was error. In the case at bar the lease expressly permitted the owner to enter the premises at all times, to examine the same and make repairs, alterations or improvements. Unlike the Becker case, constructive, not actual, notice to the owner is here claimed.

The testimony showed report of the dangerous condition three months before the accident. The owner’s representative testified that for at least six months prior to the accident the owner had nothing whatsoever to do with the property. The case was tried by the court without a jury. Under all the facts disclosed, we think the trial court could properly find that the owner had received constructive notice. After the dangerous condition was reported to the lessee, the owner allowed three months to go by without having any contact with or any supervision whatever of the premises.

The determination of the Appellate Term should be affirmed, with costs and disbursements.

Callahan, J., concurs; concurring memorandum by Untermyer, J.; Martin, P. J., and Cohn, J., dissent and vote to reverse the determination of the Appellate Term, and the judgment of the City Court so far as appealed from, and to dismiss the complaint; dissenting opinion by Cohn, J.