Opinion
2018-08889 Index No. 609299/16
12-11-2019
Patrick MICHAELE, Respondent, v. STEPH–LEIGH ASSOCIATES, LLC, Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Lindsay J. Kalick and Patrick Lawless of counsel), for appellant. Hach & Rose, LLP, New York, N.Y. (Michael A. Rose and Robert F. Garnsey of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Lindsay J. Kalick and Patrick Lawless of counsel), for appellant.
Hach & Rose, LLP, New York, N.Y. (Michael A. Rose and Robert F. Garnsey of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is granted.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained after he fell from a single-step riser in a warehouse owned by the defendant, Steph–Leigh Associates, LLC. (hereinafter Steph–Leigh). The plaintiff was an employee of nonparty Foot Locker, which operated the warehouse pursuant to a lease agreement with Steph–Leigh. According to the plaintiff, he fell due to erosion and damage along the tread nosing of the step. Steph–Leigh moved, inter alia, for summary judgment dismissing the complaint, arguing that it was an out-of-possession landlord with no duty to maintain the premises. The Supreme Court, inter alia, denied that branch of Steph–Leigh's motion, and Steph–Leigh appeals. "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’ " ( Fox v. Patriot Saloon , 166 A.D.3d 950, 951, 88 N.Y.S.3d 483, quoting Alnashmi v. Certified Analytical Group, Inc. , 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ). Here, where the complaint sounds in common-law negligence and the pleadings do not allege the violation of a statute, Steph–Leigh demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord that was not bound by contract or course of conduct to repair the allegedly damaged step (see Fuzaylova v. 63–28 99th St. Farm Ltd. , 161 A.D.3d 946, 946, 78 N.Y.S.3d 159 ). Although the lease obligated Steph–Leigh to make necessary structural repairs to the interior of the premises, contrary to the plaintiff's contentions, the allegedly cracked and eroded single-step riser was not a structural element of the warehouse for which Steph–Leigh was contractually responsible (see Fox v. Patriot Saloon , 166 A.D.3d at 951, 88 N.Y.S.3d 483 ; Chery v. Exotic Realty, Inc. , 34 A.D.3d 412, 413, 824 N.Y.S.2d 364 ; Couluris v. Harbor Boat Realty, Inc. , 31 A.D.3d 686, 687, 820 N.Y.S.2d 282 ; Gelardo v. ASMA Realty Corp. , 137 A.D.2d 787, 788, 525 N.Y.S.2d 334 ).
In opposition to Steph–Leigh's motion, the plaintiff failed to raise a triable issue of fact. The plaintiff's contention that Steph–Leigh violated the New York City Building Code was not set forth in his complaint or bill of particulars and was therefore improperly raised for the first time in opposition to Steph–Leigh's motion (see Fox v. Patriot Saloon , 166 A.D.3d at 951, 88 N.Y.S.3d 483 ; Troia v. City of New York , 162 A.D.3d 1089, 1092, 80 N.Y.S.3d 117 ).
Accordingly, the Supreme Court should have granted that branch of Steph–Leigh's motion which was for summary judgment dismissing the complaint.
SCHEINKMAN, P.J., MILLER, MALTESE and LASALLE, JJ., concur.