## Facts

- Israel Bonifacio alleged that on May 18, 1997, an elevator in a Bronx multiple dwelling at 916 Southern Boulevard rapidly dropped from the fourth floor to the first, causing serious injuries.
- 910–930 Southern Boulevard LLC was the record fee owner, having acquired title by deed dated November 29, 1996 following a foreclosure judgment.
- The premises operated under a June 30, 1992 “triple net lease,” under which a tenant entity assumed responsibility for operation, maintenance, and repairs “as if it were the owner.”
- The owner contended it was an out-of-possession owner with no operational control, no reserved right of re-entry, and no notice of any elevator defect before the incident.

## Issues

1. Whether a fee owner of a multiple dwelling can be liable in tort under Multiple Dwelling Law § 78 for a dangerous condition despite a net lease transferring possession and maintenance duties and reserving no right of re-entry or repair.
2. Whether the owner was entitled to summary judgment based on lack of actual or constructive notice of the alleged elevator defect.

## Decision

- The Appellate Division, First Department reversed the order denying the owner’s motion for summary judgment.
- The court held that Multiple Dwelling Law § 78 imposes a nondelegable duty on multiple-dwelling owners that is not eliminated by a net lease, even if the owner reserves no right of re-entry, inspection, or repair.
- The court nonetheless granted summary judgment to the owner because the record established no actual or constructive notice of an elevator defect, and the plaintiff failed to raise a triable issue on notice.
- The complaint was dismissed as against the owner.

## Legal Principles

- Multiple Dwelling Law § 78 places a nondelegable duty on the owner of a multiple dwelling to keep the premises in good repair; contractual allocation of maintenance to a net lessee does not extinguish that statutory duty.
- Even where the duty is nondelegable, tort liability still requires proof that the owner had actual or constructive notice of the dangerous condition.
- Constructive notice requires evidence that the defect was visible and apparent and existed for a sufficient time before the accident that reasonable care would have led to discovery.
- On summary judgment, the defendant must make a prima facie showing eliminating triable issues on an essential element (here, notice); the burden then shifts to the plaintiff to produce evidence raising a triable issue.

## Conclusion

A net lease does not bar tort claims against a multiple-dwelling fee owner under Multiple Dwelling Law § 78, but the owner is entitled to summary judgment where the plaintiff cannot show actual or constructive notice of the defect that caused the injury.


Bonifacio v. 910–930 S. Blvd. LLC, 295 A.D.2d 86, 743 N.Y.S.2d 105 (1st Dep’t 2002)