Opinion
2019-00345 Index 26466/11
12-29-2021
Tracy Ryals, appellant, v. West 21st Street Properties, LLC, respondent, et al., defendants (and a third-party action).
Rubino Law Firm, Yonkers, NY (JenniElena Rubino of counsel), for appellant. Correia, King, Fodera, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, NY [Seth M. Weinberg], of counsel), for respondent. Nesenoff & Miltenberg, LLP, New York, NY (Philip A. Byler and Andrew T. Miltenberg of counsel), for third-party defendant John Bakhshi.
Rubino Law Firm, Yonkers, NY (JenniElena Rubino of counsel), for appellant.
Correia, King, Fodera, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, NY [Seth M. Weinberg], of counsel), for respondent.
Nesenoff & Miltenberg, LLP, New York, NY (Philip A. Byler and Andrew T. Miltenberg of counsel), for third-party defendant John Bakhshi.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated December 7, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendant West 21st Street Properties, LLC, which was for leave to renew that branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it, which had been denied in an order of the same court dated March 2, 2018, and, upon renewal, in effect, vacated so much of the order dated March 2, 2018, as denied that branch of the prior motion of the defendant West 21st Street Properties, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it, and thereupon granted that branch of the prior motion.
ORDERED that the order dated December 7, 2018, is affirmed insofar as appealed from, with costs payable by the plaintiff to the defendant 21st Street Properties, LLC.
The plaintiff commenced this consolidated action to recover damages for injuries he sustained after being shot inside a Manhattan nightclub. The defendant West 21st Street Properties, LLC (hereinafter W21), was the owner of the premises, and the defendant 539 JB Enterprises, Ltd (hereinafter JB), operated the nightclub. Following the completion of discovery, W21 moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In an order dated March 2, 2018, the Supreme Court denied W21's motion. W21 thereafter moved, among other things, for leave to renew that branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it. In an order dated December 7, 2018, the court, inter alia, granted that branch of W21's motion which was for leave to renew that branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it, and upon renewal, granted that branch of W21's prior motion. The plaintiff appeals.
The Supreme Court providently exercised its discretion in granting that branch of W21's motion which was for leave to renew that branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it. W21 submitted evidence of new facts not offered on the prior motion that would change the court's determination, and presented a reasonable justification for its failure to submit those facts on its prior motion (see CPLR 2221[e][2], [3]; Carmike Holding I, LLC v Smith, 180 A.D.3d 744, 747; Candlewood Holdings, Inc. v Valle, 134 A.D.3d 872, 874; Deutsche Bank Trust Co. v Ghaness, 100 A.D.3d 585, 586; Schwelnus v Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 972).
Upon renewal, the Supreme Court properly granted that branch of W21's prior motion which was for summary judgment dismissing the complaint insofar as asserted against it. "[A]n out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security" (Tambriz v P.G.K. Luncheonette, Inc., 124 A.D.3d 626, 628; see Inger v PCK Dev. Co., LLC, 97 A.D.3d 895; DeJesus v New York City Health & Hosps. Corp., 309 A.D.2d 729). Here, the evidence submitted by W21 was sufficient to establish, prima facie, that it was an out-of-possession landlord that did not retain control over the premises where the plaintiff was injured or over the operation of the nightclub conducted on the premises (see Archie v Ma's & Papa Joe's, Inc., 70 A.D.3d 985; Bryan v Crobar, 65 A.D.3d 997; Donohue v S.R.O. Cafe, 300 A.D.2d 433; Borelli v 1051 Realty Corp., 242 A.D.2d 517, 518), and that it was not contractually obligated to provide security (see Tambriz v P.G.K. Luncheonette, Inc., 124 A.D.3d at 628). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the ability of W21 to reenter the premises and terminate the underlying lease agreement in the event that a certain commitment by JB was violated was insufficient to raise a triable issue of fact as to whether W21 maintained the requisite control over operation of the nightclub (see Bryan v Crobar, 65 A.D.3d 997; Rosado v Bou, 55 A.D.3d 710).
The parties' remaining contentions are either not properly before this Court or without merit.
RIVERA, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.