Chiazzese v. 5775 Maelou Drive, LLC

221 A.D.3d 1506

199 N.Y.S.3d 325

Cari CHIAZZESE, Plaintiff-Appellant-Respondent,

v.5775 MAELOU DRIVE, LLC, Defendant-Respondent,Michael Laing and Michael Laing, Doing Business as Professional Landscapes, Defendants-Appellants.

757

CA 22-00951

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 17, 2023

THE TARANTINO LAW FIRM, LLP, BUFFALO (JACOB A. PIORKOWSKI OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: WHALEN, P.J., CURRAN, BANNISTER, OGDEN, AND DELCONTE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this personal injury action seeking damages for injuries that she sustained in a slip and fall accident that occurred in a parking lot owned by defendant 5775 Maelou Drive, LLC (Maelou Drive), and leased to plaintiff's employer, a nonparty tenant. Defendants Michael Laing and Michael Laing, doing business as Professional Landscapes (collectively, Laing defendants), were contracted by the tenant to provide snow plowing and salting services for the parking lot. Plaintiff appeals, as limited by her brief, from that part of an order granting Maelou Drive's motion for summary judgment dismissing the amended complaint against it. The Laing defendants appeal, as limited by their brief, from that part of the same order denying their motion for summary judgment dismissing the amended complaint against them. We affirm.

With respect to plaintiff's appeal, we reject plaintiff's contention that Maelou Drive is not entitled to summary judgment dismissing the amended complaint against it on the ground that it is as an out-of-possession landlord. "Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of this duty" ( Henry v. Hamilton Equities, Inc. , 34 N.Y.3d 136, 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 [2019] ; see Gronski v. County of Monroe , 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011], rearg denied 19 N.Y.3d 856, 946 N.Y.S.2d 562, 969 N.E.2d 780 [2012] ). However, "a landowner who has transferred possession and control [i.e., an out-of-possession landlord] is generally not liable for injuries caused by dangerous conditions on the property" ( Henry , 34 N.Y.3d at 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 [internal quotation marks omitted]; see Gronski , 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ). "[W]hen a landowner and one in actual possession have committed their rights and obligations with regard to the property to a writing, we look not only to the terms of the agreement but to the parties’ course of conduct—including, but not limited to, the landowner's ability to access the premises—to determine whether the landowner in fact surrendered control over the property such that the landowner's duty is extinguished as a matter of law" ( Gronski , 18 N.Y.3d at 380-381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ).

Here, we conclude that Maelou Drive met its initial burden on the motion of establishing that it was an out-of-possession landlord that had relinquished control of the premises and was not obligated to perform repairs or maintenance of the premises, including removal of snow (see Adolf v. Erie County Indus. Dev. Agency , 174 A.D.3d 1519, 1519, 103 N.Y.S.3d 340 [4th Dept. 2019] ; Sexton v. Resinger , 70 A.D.3d 1360, 1361, 894 N.Y.S.2d 640 [4th Dept. 2010] ). In support of its motion, Maelou Drive submitted, inter alia, the lease agreement between itself and its tenant, which provided that the tenant was responsible for all maintenance and repair of the premises, and the snow removal contract that its tenant subsequently executed with the Laing defendants (see Tarantelli v. 7401 Willowbrook Rd. Assoc., LLC , 13 A.D.3d 1184, 1184, 787 N.Y.S.2d 587 [4th Dept. 2004] ).

Contrary to plaintiff's contention, the deposition testimony of Maelou Drive's corporate representative did not create a question of fact whether Maelou Drive was the landlord or merely a tenant that operated a business at the property, because Maelou Drive submitted an errata sheet sworn to by the corporate representative wherein the representative stated that he misunderstood some questions during the deposition and corrected his answers to reflect that Maelou Drive owned the property and was actually the landlord. Further, the corporate representative's testimony, as corrected by the errata sheet, is supported by documentary evidence submitted in support of the motion, including the lease between Maelou Drive and the tenant. Additionally, "[t]he fact that [Maelou Drive] ... retained the right to visit the premises [and direct the tenant to perform maintenance and repairs necessary to comply with the lease and governing regulations] is insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord" ( Ferro v. Burton , 45 A.D.3d 1454, 1455, 846 N.Y.S.2d 850 [4th Dept. 2007] [internal quotation marks omitted]; see Schwegler v. City of Niagara Falls , 21 A.D.3d 1268, 1269-1270, 801 N.Y.S.2d 873 [4th Dept. 2005] ).

We also reject plaintiff's contention that Maelou Drive owed a non-delegable duty to maintain the parking area in a reasonably safe condition. While there are exceptions to the general rule that an out-of-possession landlord does not have a duty to maintain its property in a reasonably safe condition where the out-of-possession landlord: (1) "rents premises for a public use when [it] knows, or should have known, that they are in a dangerous condition at the time of the lease" ( Fuller v. Marcello , 38 A.D.3d 1162, 1163, 832 N.Y.S.2d 351 [4th Dept. 2007] [internal quotation marks omitted]; see Brady v. Cocozzo , 174 A.D.2d 814, 814, 570 N.Y.S.2d 748 [3d Dept. 1991] ); (2) "is contractually obligated to repair the premises"; or (3) "has reserved the right to enter the premises to make repairs, and liability is based on a significant structural or design defect that violates a specific statutory safety provision" ( Weaver v. Deronde Tire Supply, Inc. , 211 A.D.3d 1503, 1504, 182 N.Y.S.3d 431 [4th Dept. 20...