Opinion
14708-14708A Index No. 301116/16E 83853/16 Case No. 2021–00368, 2021–00369
11-30-2021
Mamadou DRAME, Plaintiff–Appellant, v. 1650 BUSHWICK REALTY CORP., Defendant–Respondent. 1650 Bushwick Realty Corp., Third–Party Plaintiff–Respondent, v. SLS Car Wash, Inc., Third–Party Defendant–Respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Smith Mazure, P.C., New York (Stacy I. Malinow of counsel), for 1650 Bushwick Realty Corp., respondent. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for SLS Car Wash, Inc., respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Smith Mazure, P.C., New York (Stacy I. Malinow of counsel), for 1650 Bushwick Realty Corp., respondent.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for SLS Car Wash, Inc., respondent.
Renwick, J.P., Mazzarelli, Moulton, Scarpulla, Higgitt, JJ.
Judgments, Supreme Court, Bronx County (Julia Rodriguez, J.), entered on or about July 30, 2020 and July 31, 2020, dismissing the complaint and the third-party complaint, and appeal therefrom bringing up for review an order, same court and Justice, entered July 23, 2020, which granted defendant/third-party plaintiff's and third-party defendant's (SLS) motions for summary judgment and denied plaintiff's motion to compel discovery, unanimously affirmed, without costs.
Defendant established prima facie that it was an out-of-possession landlord with no duty to plaintiff to maintain or repair its premises, in which SLS, its tenant, ran a car wash business (see DeJesus v. Tavares, 140 A.D.3d 433, 33 N.Y.S.3d 47 [1st Dept. 2016] ). The terms of the lease between defendant and SLS provided that defendant was not obligated to make repairs or maintain the premises where plaintiff's accident occurred; in addition, defendant's principal testified that he had no involvement in the car wash business after he sold it to SLS and retired (see Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 A.D.3d 525, 527, 56 N.Y.S.3d 32 [1st Dept. 2017] ; Salazar v. Fives 160th LLC, 91 A.D.3d 523, 524, 937 N.Y.S.2d 38 [1st Dept. 2012] ). The lease placed the responsibility for nonstructural repairs squarely on SLS. While defendant retained a limited right of reentry, plaintiff does not allege that the missing cover of the conveyor belt on which he was injured constitutes a structural or design defect contrary to a specific statutory provision, for which defendant could be held liable (see Quing Sui Li v. 37–65 LLC, 114 A.D.3d 538, 539, 981 N.Y.S.2d 14 [1st Dept. 2014] ).
In opposition, plaintiff failed to raise an issue of fact. His argument that defendant, through its principal, exercised control over the premises at the time of the accident is belied by the record, which includes testimony by numerous witnesses showing that defendant's principal relinquished control after the car wash was sold in 2000. Given the lease and the other evidence that defendant was an out-of-possession landlord, the close familial relationship between defendant's principal and SLS's principals does not raise an issue of fact as to control (see Sapp, 150 A.D.3d at 528, 56 N.Y.S.3d 32 ; Nielsen v. 300 E. 76th St. Partners, LLC, 111 A.D.3d 414, 415, 974 N.Y.S.2d 246 [1st Dept. 2013] ).
Plaintiff failed to make the requisite detailed showing of necessity for a fourth deposition of SLS through its officer, the daughter of defendant's principal (see Colicchio v. City of New York, 181 A.D.2d 528, 529, 581 N.Y.S.2d 36 [1st Dept. 1992] ; Alexopoulos v. Metropolitan Transp. Auth., 37 A.D.3d 232, 233, 829 N.Y.S.2d 502 [1st Dept. 2007] ).