In Wrubel v. Rose Boutique II, Inc., 13 A.D.3d 264, 787 N.Y.S.2d 263 (1st Dept 2004), plaintiff alleged injury from a fall down an interior stairway leading from the ground floor to the basement in property owned by defendant Kostas & Michael Realty and leased to defendant Rose Boutique, which operated a flower shop on the premises.

Plaintiff had selected some plants at the store and handed them to a clerk at the counter, where she inquired about birthday balloons. She was directed to some shelves on the opposite wall, which were adjacent to an open stairway. Attempting to retrieve some of these balloons, she slipped and tumbled down the stairs.

The court found that even though Kostas & Michael Realty, the property owner, retained the right to re-enter the premises, it was nonetheless an out-of-possession landlord with no direction or control of the layout and operation of the flower shop.