Gallina v. 7901-11 13th Ave. Realty Corp.

186 A.D.3d 1617

129 N.Y.S.3d 834 (Mem)

Salvatore GALLINA, respondent,

v.7901–11 13TH AVENUE REALTY CORP., appellant.

2019–11736

Index No. 518212/17

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

Argued—March 13, 2020

September 30, 2020

Litchfield Cavo LLP, New York, NY (Sean H. Chung and Patrick Steinbauer of counsel), for appellant.

Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Jillian Rosen, and Christopher J. Soverow ], of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated September 25, 2019. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly was injured after falling through an opening in the floor of a supermarket in Brooklyn where he was employed as a baker. The opening led to the basement of the premises and was used as a shaft for a lift that had been installed on the premises and was used to transport racks of baked goods between the basement and ground floor. The plaintiff commenced this personal injury action against the defendant, the owner of the premises, alleging common-law negligence. The defendant moved for summary judgment dismissing the complaint on the ground, among others, that it was an out-of-possession landlord with no duty to maintain the lift. In an order dated September 25, 2019, the Supreme Court denied the defendant's motion. The defendant appeals.

"An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition" ( Boudreau–Grillo v. Ramirez, 74 A.D.3d 1265, 1267, 904 N.Y.S.2d 485 [internal quotation marks omitted]; see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). However, " ‘[a]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct’ " ( Michaele v. Steph–Leigh Assoc., LLC, 178 A.D.3d 820, 820, 111 N.Y.S.3d 882, quoting Fox v. Patriot Saloon, 166 A.D.3d 950, 951, 88 N.Y.S.3d 483 [internal quotation marks omitted] ).

Here, where the complaint sounds in common-law negligence and the pleadings do not allege a violation of a statute, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord that did not assume a duty to maintain the premises by contract or by a course of conduct (see Michaele v. Steph–Leigh Assoc., LLC, 178 A.D.3d 820, 111 N.Y.S.3d 882 ; Fox v. Patriot Saloon, 166 A.D.3d 950, 88 N.Y.S.3d 483 ; Fuzaylova v. 63–28 99th St. Farm Ltd., 161 A.D.3d 946, 78 N.Y.S.3d 159 ).

In opposition, the plaintiff failed to...