Macchi v. Greenhut ( 1959 )

Fred J. Munder, J.

Plaintiffs ask leave to amend their complaint by adding one George Proios as party defendant and to serve a supplemental summons on him. A prior motion for the same relief was denied by Mr. Justice Ritchie without prejudice to a renewal if the plaintiffs could set forth facts supporting a cause of action against Proios.

The present defendants are contract vendees who rented an apartment which they created in the house to the plaintiffs. The defendants erected a stairway, on which the female plaintiff fell and was injured.

The proposed amended complaint alleges that the original defendants, at the time of the accident, were in possession and control of the premises. The plaintiffs then allege that Proios was the owner of the record title, who they allege, owed a duty to inspect the premises and eliminate any dangerous condition or to prohibit the construction of the stairway.

These allegations not only do not set forth a cause of action against Proios but the allegation of control in the contract vendees absolves him from liability under the facts here set forth. Nothing has been shown which establishes an exception from the general rule that “ One’s liability in negligence for the condition of land ceases when the premises pass out of one’s control before injury results ”. (Kilmer v. White, 254 N. Y. 64, 69, Pound, J.)

The motion is denied.

Submit order.