Maharaj v. Kreidenweis

214 A.D.3d 717

185 N.Y.S.3d 217

Gerald MAHARAJ, et al., appellants,

v.Marianne KREIDENWEIS, et al., respondents.

2020–06942

Index No. 705304/18

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

Submitted—November 1, 2022

March 8, 2023

Marino & Marino, P.C., Great Neck, NY (Salvatore R. Marino of counsel), for appellants.

James F. Butler, Jericho, NY (Nancy S. Goodman of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered August 12, 2020. The judgment, upon an order of the same court entered July 27, 2020, granting the defendants’ motion for summary judgment dismissing the complaint, is in favor of the defendants and against the plaintiffs dismissing the complaint.

ORDERED that the judgment is reversed, on the law, with costs, the defendants’ motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order is modified accordingly.

The plaintiffs commenced this action to recover damages for injuries they each allegedly sustained after slipping and falling on icy steps at a two-family residential building owned by the defendants. The defendants moved for summary judgment dismissing the complaint on the grounds that they were out-of-possession landlords who were not responsible for the condition that allegedly caused the accident, and that they neither created the condition nor had actual or constructive notice of it. The Supreme Court granted the motion. The plaintiffs appeal.

"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 ; see Gronski v. County of Monroe, 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ). "That duty is premised on the landowner's exercise of control over the property, as ‘the person in possession and control of property is best able to identify and prevent any harm to others’ " ( Gronski v. County of Monroe, 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219, quoting Butler v. Rafferty, 100 N.Y.2d 265, 270, 762 N.Y.S.2d 567, 792 N.E.2d 1055 ). "In contrast, 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 v. Hamilton Equities, Inc., 34 N.Y.3d at 142, 114 N.Y.S.3d 21, 137 N.E.3d 476, quoting Gronski v. County of Monroe, 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ). Even where it is established that the landowner is an out-of-possession landlord, liability may be imposed, inter alia, where the landowner has retained control over the premises and has assumed a responsibility to perform the relevant maintenance or repair by contract or a course of conduct (see Henry v. Hamilton Equities, Inc., 34 N.Y.3d at 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 ; Gronski v. County of Monroe, 18 N.Y.3d at 380–381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ; Cali Dev. Corp. v. Church Side Realty, LLC, 208 A.D.3d 451, 452, 172 N.Y.S.3d 707 ).

Here, the defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The defendants did not submit a copy of any lease, and the deposition testimony submitted in support of the motion failed to establish, prima facie, that the defendants had transferred possession and control of the premises (see Taliana v. Hines REIT Three Huntington Quadrangle, LLC, 197 A.D.3d 1349, 1351, 154 N.Y.S.3d 136 ; Muller v. City of New York, 185 A.D.3d 834, 835, 125 N.Y.S.3d 576 ; Robbins v. 237 Ave. X, LLC, 177 A.D.3d 799, 800, 113 N.Y.S.3d 235 ). Moreover, the deposition testimony submitted in support of the motion included testimony that the defendants were responsible for maintaining the property, including snow removal, and had engaged in snow removal on the premises. The defendants thus also failed to establish, prima facie, that they had no duty, by contract or course of conduct, to remove snow and ice from the premises (see Taliana v. Hines REIT Three Huntington Quadrangle, LLC, 197 A.D.3d at 1351, 154 N.Y.S.3d 136 ; Muller v. City of New York, 185 A.D.3d at 835, 125 N.Y.S.3d 576 ; Washington–Fraser v. Industrial Home for the Blind, 164 A.D.3d 543, 545, 83 N.Y.S.3d 503 ).

As the proponents of the motion for summary judgment, the defendants had the burden of establishing, prima facie, that they neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501...