Opinion
2002-1467 RI C.
Decided October 2, 2003.
Appeal by plaintiffs from so much of an order of the Civil Court, Richmond County (P. Straniere, J.), entered August 8, 2002, as granted the cross motion by defendants Victoria Nasta and Joseph Nasta for summary judgment dismissing the complaint insofar as asserted against them.
On the court's own motion, Victoria Nasta as Administratrix for the Estate of Joseph Nasta is substituted for the deceased Joseph Nasta pursuant to CPLR 1015 (a).
Order insofar as appealed from unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
The record indicates that Joseph Nasta died on May 1, 1996 and letters of administration were issued to Victoria Nasta in April of 1998.
In the instant action, Barbara Whitman (hereinafter the plaintiff) was injured when she slipped and fell on the snow-covered front steps as she exited the building leased to her employer by defendants Victoria Nasta and Joseph Nasta (hereinafter the landlords). Her husband, plaintiff Gerard Whitman, asserted a derivative cause of action and the landlords commenced a third-party action against her employer, Dr. Robert Feldman.
After plaintiff's employer moved for summary judgment dismissing the third-party action, the landlords cross-moved for summary judgment dismissing the complaint insofar as asserted against them. Plaintiffs appeal from so much of the order as granted the landlords' cross motion. Landlords claimed that they were out of possession and "owe[d] no duty to maintain and make repairs upon demised premises unless [they] retain control of the property or [are] contractually obligated to perform such maintenance and repairs" ( Gallo v. Apollon City Corp., 278 AD2d 363, 363-364). Even assuming, as plaintiff contends, that one of the landlords utilized the basement ( see Torres v. Jeremias, 283 AD2d 484), at oral argument, it was established that access to the basement was via a separate set of steps located behind the building. In light of the fact that landlords did not retain control of the subject steps which were included in the premises leased to plaintiff's employer and they were not contractually obligated to remove snow from said steps, landlords' cross motion for summary judgment was properly granted because plaintiff failed to raise a material issue of fact ( see Gallo, 278 AD2d 363).