(dissenting). I respectfully dissent. Given the unique factual circumstances presented in the instant case, I cannot conclude as a matter of law that defendant should be completely absolved of liability for the injuries suffered by plaintiff Martin A. Davison (hereinafter plaintiff). Plaintiffs predicate liability upon defendant’s contractual duty to maintain the structural components of the building, specifically the pipes struck by plaintiff in the loft area, and its control over these facilities. Since there was evidence presented supporting plaintiffs’ claim in that regard and establishing that defendant was on notice of the dangerous condition, I would affirm the denial of the summary judgment motion.
Notably, plaintiffs adduced proof establishing that under the terms of its lease with K-Mart Corporation, defendant retained responsibility for making “all structural repairs (both exterior and interior) to the walls, floor and foundation, and also [to] make all repairs to the exterior walls, gutters, downspouts, marquee and roof of the Tenant’s building”. The lease further obligated defendant to “maintain and repair all sewerage facilities and other utility facilities within the walls or floors if the need therefor is the result of faulty construction, latent defects, inferior materials or Landlord’s negligence”. Thus, it is apparent from these provisions that defendant was responsible for maintaining the pipes at issue.
*803In addition, plaintiffs submitted evidence that defendant’s maintenance person, Robert Wiggand (hereinafter Wiggand), took care of the common areas of the shopping center and structural components of the buildings, which included making arrangements for the repair and ultimate replacement of the roof as well as periodic inspections of the sprinkler system. Wiggand frequented the interior of the K-Mart premises, including the stockroom and loft area, during the course of his duties, such as when he reset the timer on the parking lot lights and investigated leaks in the roof. James Linsenbigler, a former K-Mart store manager, averred that Wiggand was in the loft area on more than one occasion and that Linsenbigler specifically warned him to be careful of the low-lying pipes protruding from the ceiling which were in plain view.
In my view, the foregoing evidence is indicative of defendant’s control over and responsibility for maintaining the pipes which caused plaintiff’s injuries. Although the pipes became dangerous due to the construction of the loft by a K-Mart construction crew in 1979, Linsenbigler’s affidavit reveals that defendant became aware of this dangerous condition when Wiggand was present in the loft performing certain maintenance duties. The lease required defendant to repair and maintain the structural components of the building, including utility facilities, so that they would be in a “safe, dry and tenantable condition” (emphasis supplied). The low-lying pipes in the loft area were a clear violation of the State Building Code according to the affidavit of plaintiffs’ professional engineer. Equipped with knowledge that the erection of the loft made the pipes dangerous, defendant had a duty under the terms of the lease to take some corrective action and not simply disregard this dangerous condition. Accordingly, the denial of defendant’s motion for summary judgment was, in my opinion, appropriate (see generally, De Cristofaro v Joann Enters., 243 AD2d 1015; compare, Henness v Lusins, 229 AD2d 873).
Ordered that the judgment and order are reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.