(dissenting). Respondent Pauline Tkach has recovered a judgment in the City Court of the City of New York against appellant for injuries sustained on March 23, 1939, by plaster falling from the ceiling in the kitchen of her apartment in appellant’s multiple dwelling. Her husband, the other respondent, also obtained a judgment in the same action for loss of his wife’s services.
' On November 30, 1937, appellant, Montefiore Hospital for Chronic Diseases, leased the entire building to the impleaded defendant, Meyer Hurwitz. This lease was in effect on the date of the accident. Two or three months before the occurrence of the accident, both respondents had complained of the defective ceiling to the superintendent of the building and to an agent for the premises. Concededly, these men were agents of the lessee, Meyer Hurwitz, and not of appellant.
Appellant urges that a recovery against it was not warranted because there was no evidence of notice to it, either actual or constructive, that the ceiling of respondents’ apartment was in a defective condition.
It is now the law that a lease of the entire premises does not relieve the owner of his liability to keep in good repair every portion of his building as provided by section 78 of the Multiple Dwelling Law. (Weiner v. Leroco Realty Corp., 279 N. Y. 127.) However, before a recovery may be had from the landlord for failure to keep and maintain respondents’ apartment, including the ceiling, in a reasonably safe condition, there must be proof of notice, actual or constructive, of the dangerous condition and a reasonable opportunity afforded thereafter to make the necessary repairs. (Altz v. Leiberson, 233 N. Y. 16; Eckert v. Reichardt, 243 id. 72; Aubry v. Ashland Realty Co., Inc., 255 App. Div. 205, 208.)
Where, as here, actual notice of the defective condition is given to a tenant of an entire building in possession under a lease, that does not constitute notice to the owner of the building who is not in possession. This court has so held. (Becker v. Manufacturers Trust Co., 262 App. Div. 525.) Moreover, the existence for several *138months of a defect in a subtenant’s apartment cannot be regarded as constructive notice to the owner, where the subtenant’s apartment is not within the owner’s exclusive control and not open to inspection by it.
In Weiner v. Leroco Realty Corp. (supra) the dangerous condition existed upon an outside stairway which was used in common by the tenants and others, and which was available for examination by the owner as well as its lessee. The evidence there showed that the defect in the common stairway had existed for some time prior to the accident. There was in the Leroco case constructive notice because the defect existed in a common way open to inspection by the owner. In this case, however, there is no evidence that any representative of appellant had ever been notified of any defect in the ceiling before the accident or that appellant or its agents had ever been in respondents’ apartment before its occurrence; nor was there any showing of constructive notice. Accordingly, there is no basis for a recovery by respondents against appellant.
The determination of the Appellate Term, and the judgment of the City Court, so far as appealed from, should be reversed and the complaint dismissed.
" Martin, P. J., concurs.
Determination affirmed, with costs and disbursements.