Opinion
12421 Index No. 300610/14 Case No. 2019-03292
11-19-2020
Sandy ESTRELLA, Plaintiff–Appellant, v. REX REALTY OF CONNECTICUT, INC., et al., Defendants–Respondents.
Michelstein & Ashman, PLLC, New York (Stephen J. Riegel of counsel), for appellant. Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for respondents.
Michelstein & Ashman, PLLC, New York (Stephen J. Riegel of counsel), for appellant.
Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for respondents.
Gische, J.P., Mazzarelli, Moulton, Mendez, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about June 25, 2019, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Rex Realty of Connecticut, Inc. (Rex Realty) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Rex Realty established prima facie that it cannot be held liable for plaintiff's alleged injuries by submitting the lease agreement for the premises showing that it was an out-of-possession landlord with no duty to perform nonstructural repairs at the time of the accident (see Dinkins v. Kansas Fried Chicken, Inc., 158 A.D.3d 420, 421, 70 N.Y.S.3d 195 [1st Dept. 2018] ). In opposition, plaintiff failed to raise a triable issue of fact as to whether Rex Realty had constructive notice of the alleged defect because his deposition testimony establishes that he never inspected the ceiling, and no expert affidavit was submitted with his opposition that supports his claim that the garage's condition on the day of the accident violated a specific statutory safety provision and that those violations proximately caused his injuries (see Mangum v. 500 Brush LLC, 160 A.D.3d 552, 71 N.Y.S.3d 885 [1st Dept. 2018] ; Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [1st Dept. 2010] ). That plaintiff's counsel, who lacked personal knowledge of the operative facts, submitted an affirmation claiming that the condition of the property on the day of the accident violated section 304 of the 2010 International Property Maintenance Code was insufficient to raise a triable issue of fact (see Schwartz v. 170 W. End Owners Corp., 161 A.D.3d 693, 693, 79 N.Y.S.3d 13 [1st Dept. 2018] ).
Rex Realty also prima facie established that it lacked actual notice, because its witness testified at its deposition that he was the company's majority shareholder, its president and oversaw the leasing of its properties including the subject premises. He stated that Rex Realty did not inspect or repair the garage's roof after it leased the property, it never received a violation or a notice to repair it before the accident, and that no one complained to him about the area before plaintiff fell (see Martinez v. Hunts Point Coop. Mkt., Inc., 79 A.D.3d 569, 570, 914 N.Y.S.2d 99 [1st Dept. 2010] ). Plaintiff's argument he overheard a telephone conversation in which his boss told someone that he believed was employed by Rex Realty that the roof was leaking and required repair about four years before the accident does not create an issue of fact. The claim that the person on the other end of the phone was the owner's representative, is not based on personal knowledge and is speculative (see San Andres v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, 591, 942 N.Y.S.2d 104 [1st Dept. 2012] ).