Opinion
2019–06000 Index No. 609118/16
03-11-2020
Peter T. BROUGHAL, Respondent, v. TAE J. KWON, et al., Appellants.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric P. Tosca of counsel), for appellants. Stephen G. Reddan, Valley Stream, NY, for respondent.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric P. Tosca of counsel), for appellants.
Stephen G. Reddan, Valley Stream, NY, for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
On the morning of February 12, 2015, the plaintiff allegedly slipped and fell on ice on a walkway located to the side of the defendants' strip mall. The plaintiff was the owner and operator of nonparty PTB, Inc., doing business as Fibber McGee's, which leased the premises abutting the side walkway from the defendants. The Supreme Court denied the defendants' motion for summary judgment dismissing the complaint. The defendants appeal.
An 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" ( Alnashmi v. Certified Analytical Group, Inc. , 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ; see Gronski v. County of Monroe , 18 N.Y.3d 374, 380–381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ; Guzman v. Haven Plaza Hous. Dev. Fund Co. , 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51 ; Richer v. JQ II Assoc., LLC , 166 A.D.3d 692, 693, 88 N.Y.S.3d 190 ; Casson v. McConnell , 148 A.D.3d 863, 864, 49 N.Y.S.3d 711 ). The defendants established, prima facie, that pursuant to the lease agreement, the tenant was responsible for removing snow and ice from the walkway where the accident occurred (see Bartels v. Eack , 164 A.D.3d 1202, 83 N.Y.S.3d 657 ; Chapman v. MCS Realty, LLC , 92 A.D.3d 913, 938 N.Y.S.2d 900 ; Lindquist v. C & C Landscape Contrs., Inc. , 38 A.D.3d 616, 617, 831 N.Y.S.2d 523 ). In opposition, the plaintiff failed to raise a triable issue of fact.
The defendants, however, failed to establish, prima facie, that they had no duty to maintain the drainage system, that they adequately maintained the drainage system, and that their maintenance of the drainage system did not proximately cause the plaintiff's injuries (see Bartels v. Eack , 164 A.D.3d 1202, 83 N.Y.S.3d 657 ; Schmidt v. DiPerno , 25 A.D.3d 545, 808 N.Y.S.2d 413 ). Therefore, in regard to the drainage system, the burden never shifted to the plaintiff to raise a triable issue of fact.
Accordingly, we agree with the Supreme Court's determination denying the defendants' motion for summary judgment dismissing the complaint.
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.