Opinion
February 3, 1995
Appeal from the Supreme Court, Onondaga County, Pooler, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint against defendant Joda Realty, Inc., dismissed. Memorandum: Martin Johnson (plaintiff) was repairing an ice machine inside a building owned by Joda Realty, Inc. (defendant) and leased to Wise Guys, Inc., a comedy club, when his foot went through the floor. By tendering unrefuted, competent evidence that it had no control over the premises occupied by the comedy club or notice of any defect affecting the floor, and that it was not responsible for interior repairs, defendant established its entitlement to judgment as a matter of law (see, Putnam v. Stout, 38 N.Y.2d 607, 612; Canela v. Foodway Supermarket, 188 A.D.2d 416). The assertion of plaintiff that the defective floor could have been caused by water that leaked through shingles missing from the roof of the building is too speculative to raise a material question of fact requiring trial (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).