Opinion
2012-02-28
Edward CHAPMAN, respondent, v. MCS REALTY, LLC, appellant.
Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for appellant. Baxter, Smith & Shapiro, P.C. (Joseph M. Guzzardo and Steven Bundschuh of counsel), for respondent.
Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for appellant. Baxter, Smith & Shapiro, P.C. (Joseph M. Guzzardo and Steven Bundschuh of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated February 17, 2011, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when he fell on an icy sidewalk at night after exiting a building owned by the defendant and leased to the plaintiff's employer, a retail furniture store. The plaintiff commenced this action against the defendant, alleging that it was negligent in failing to remove snow and ice from the sidewalk and in failing to provide adequate exterior lighting. The defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. The defendant appeals, and we reverse.
“An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct” ( Mercer v. Hellas Glass Works Corp., 87 A.D.3d 987, 988, 930 N.Y.S.2d 18; see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 858 N.E.2d 1127; Chapman v. Silber, 97 N.Y.2d 9, 19–20, 734 N.Y.S.2d 541, 760 N.E.2d 329; Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642, 649 N.Y.S.2d 115, 672 N.E.2d 135; Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 929 N.Y.S.2d 620). Here, the plaintiff does not premise liability on a violation of a statute or regulation and, instead, bases his claim on the common law. The defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that the lease placed responsibility for maintenance of the sidewalk and exterior lighting on the tenant, and that it did not endeavor to perform such maintenance ( see Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d at 18–19, 929 N.Y.S.2d 620; Mercer v. Hellas Glass Works Corp., 87 A.D.3d at 987–988, 930 N.Y.S.2d 18; Panico v. Jiffy Lube Intl., Inc., 86 A.D.3d 553, 926 N.Y.S.2d 833; McElroy v. Bernstein, 72 A.D.3d 757, 758, 898 N.Y.S.2d 471; Euvino v. Loconti, 67 A.D.3d 629, 631, 888 N.Y.S.2d 571). In opposition, the plaintiff failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.