Harry Kulkowitz, Appellant, v. 122-124 Duane Realty Corporation, Appellant, and Brookes Brian, Ltd., Doing Business as Gorsart Clothes, Respondent

Harry Kulkowitz, Appellant, v 122-124 Duane Realty Corporation, Appellant, and Brookes Brian, Ltd., Doing Business as Gorsart Clothes, Respondent. [MAJORITY] — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about October 16, 1991, which granted defendant Brookes Brian’s motion for summary judgment dismissing the complaint and defendant Duane Realty’s cross claim against it, unanimously affirmed, with costs. Plaintiff was injured by a sign that fell from a building owned by defendant Duane Realty. For purposes of the motion, it is conceded that the sign had previously belonged to defendant Brookes Brian, a former tenant which had vacated the premises some five years before the accident. Pursuant to the terms of codefendants’ lease, all property not removed at the end of the tenancy would be deemed abandoned, and, at the landlord’s option, could be either retained by the landlord or removed at the tenant’s expense. Since the sign was never removed by defendant Duane Realty, the sign became its property and responsibility by dint of this provision, and defendant Brookes Brian may not now be cast in liability for failure to maintain it. The stipulation of settlement relied on by defendant Duane Realty merely foreshortened the expiration of the lease and did not in any fashion modify the provision concerning the abandonment of property left on the premises. Concur — Sullivan, J. P., Carro, Wallach and Smith, JJ.