Villegas v. Malisky

NEW YORK COUNTY
Torts

New York Law Journal

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Justice Shlomo S. Hagler

Homeowner Malisky moved for summary judgment dismissing Villegas personal injury action against him. Villegas alleged he was injured in the subject premises after he walked into a glass door that shattered causing him lacerations. The premises is Malisky's primary residence, but he permitted a friend, Mitchell, to occasionally stay there, and in exchange, Mitchell pays some of the bills. Unknown to Malisky, and without his consent, Mitchell rented the premises out. Villegas alleged Malisky was negligent in the ownership and operation of the premises. The court found Villegas failed to show defendants were on notice the glass door was defective. Villegas claimed Malisky was required to place warnings on the door under New York State Industrial Code 12 NYCRR Parts 47.6, 47.7 and 47.11. In a case of apparent first impression, the court disagreed, finding the premises did not fit the statute's definition of a public building or a commercial premises. It noted despite Mitchell renting the premises to others, this was insufficient to make the property a commercial premises as it was not used exclusively for commercial purposes as an income-producing rental property. Thus, the Industrial Code was inapplicable, and Malisky was granted summary judgment.

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