Opinion
2014-08-13
Nimia GARCIA, respondent, v. TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY, et al., defendants, Creative Juices Printing & Graphics, et al., appellants.
O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Dawn C. Faillace–Dillon and Eugene Morenus of counsel), for appellant Creative Juices Printing & Graphics. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Kristin Blair Tyler and Anton Piotroski of counsel), for appellant Gazzilla Corp.
O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Dawn C. Faillace–Dillon and Eugene Morenus of counsel), for appellant Creative Juices Printing & Graphics. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Kristin Blair Tyler and Anton Piotroski of counsel), for appellant Gazzilla Corp.
Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Paul B. Edelman of counsel), for respondent.
In a consolidated action to recover damages for personal injuries, etc., the defendant Creative Juices Printing & Graphics appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Martin, J.), entered October 24, 2012, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendant Gazzilla Corp. separately appeals from so much of the same order as denied that branch of its cross motion, made jointly with the defendant Town of Babylon, which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bills of costs, and the motion of the defendant Creative Juices Printing & Graphics for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and that branch of the cross motion of the defendant Gazzilla Corp. which was for summary judgment dismissing the complaint insofar as asserted against it are granted.
The Supreme Court improperly denied that branch of the motion of the defendant Gazzilla Corp., made jointly with the defendant Town of Babylon, which was for summary judgment dismissing the complaint insofar as asserted against it. An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has retained control over the premises, and if the landlord has a duty imposed by statute or assumed by contract or a course of conduct ( see Wenzel v. 16302 Jamaica Ave., LLC, 115 A.D.3d 852, 982 N.Y.S.2d 489;Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ; Healy v. Bartolomei, 87 A.D.3d 1112, 1113, 929 N.Y.S.2d 866). Here, Gazzilla Corp. established, prima facie, that it was an out-of-possession landlord with no such duty, such that liability could not be imposed upon it ( see Chapman v. MCS Realty, LLC, 92 A.D.3d 913, 938 N.Y.S.2d 900;Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d at 18–19, 929 N.Y.S.2d 620;Travers v. RCPI Landmark Props., LLC, 74 A.D.3d 956, 957–958, 906 N.Y.S.2d 563). In opposition, the plaintiff failed to raise a triable issue of fact as to whether Gazzilla Corp. retained control over the premises or had a contractual duty to maintain and repair the premises ( see Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d at 19, 929 N.Y.S.2d 620). Inasmuch as Gazzilla Corp . did not owe a duty to the plaintiff, we need not address the issue of whether it had notice of the alleged dangerous condition ( see id.).
The Supreme Court also improperly denied the motion of the defendant Creative Juices Printing & Graphics (hereinafter Creative) for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. “Premises liability, as with liability for negligence generally, begins with duty” ( id. at 13, 929 N.Y.S.2d 620), the extent and existence of which is a question of law ( see id.; Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485). Generally, “liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control or special use of that property” ( Suero–Sosa v. Cardona, 112 A.D.3d 706, 707, 977 N.Y.S.2d 61;Sanchez v. 1710 Broadway, Inc., 79 A.D.3d 845, 846, 915 N.Y.S.2d 272). Where none of those factors exist, a party cannot be held liable for injuries caused by the allegedly defective condition ( see Sanchez v. 1710 Broadway, Inc., 79 A.D.3d at 846, 915 N.Y.S.2d 272).
Here, Creative established that it was another tenant of the premises and did not own, occupy, or control the area where the plaintiff's accident allegedly occurred. Therefore, it established, prima face, that it did not owe the plaintiff a duty of care ( Suero–Sosa v. Cardona, 112 A.D.3d 706, 977 N.Y.S.2d 61;Alami v. 215 East 68th St., L.P., 88 A.D.3d 924, 931 N.Y.S.2d 647). In opposition, the plaintiff failed to raise an issue of fact.
Therefore, the Supreme Court should have granted Creative's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and that branch of Gazzilla Corp.'s cross motion which was for summaryjudgment dismissing the complaint insofar as asserted against it. RIVERA, J.P., BALKIN, DICKERSON and COHEN, JJ., concur.