Opinion
No. 2022-10520 Index No. 518939/18
10-02-2024
Valerie Kavenaght, respondent, v. 498 Seventh, LLC, appellant.
Manson & McCarthy (Goldberg Segalla LLP, White Plains, NY [Michael P. Kandler], of counsel), for appellant. Redmond Law Firm, PLLC, New York, NY (Cornelius Redmond of counsel), for respondent.
Manson & McCarthy (Goldberg Segalla LLP, White Plains, NY [Michael P. Kandler], of counsel), for appellant.
Redmond Law Firm, PLLC, New York, NY (Cornelius Redmond of counsel), for respondent.
ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated November 17, 2022. The order, insofar as appealed from, denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as was not predicated on a violation of the Multiple Dwelling Law and the Real Property Law.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as was not predicated on a violation of the Multiple Dwelling Law and the Real Property Law is granted.
The plaintiff commenced this action to recover damages for personal injuries she alleged she sustained while at work when she tripped and fell on a defective landing of a staircase. The landing was located between the first floor, where the plaintiff's employer operated a seating area of its restaurant, and the basement, where the plaintiff's employer operated a food preparation area. The defendant owned the commercial building in Manhattan where the accident occurred.
According to the plaintiff, her left foot got stuck when she stepped on a protruding rock-like object approximately the size of a penny on the landing, and there was no handrail on the right side of the staircase. The defendant moved for summary judgment dismissing the complaint, arguing, inter alia, that it was an out-of-possession landlord with no duty to maintain the staircase within the subject premises. The Supreme Court granted that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as was predicated on a violation of the Multiple Dwelling Law and the Real Property Law and otherwise denied the motion. The defendant appeals.
"'[A]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'" (Souffrant v M & K Real Estate Assoc., LLC, 225 A.D.3d 914, 916, quoting Jin Hee Son v Zafiara Realty, Inc., 218 A.D.3d 554, 556; see Achee v Merrick Vil., Inc., 208 A.D.3d 542, 543-544).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord and was not obligated to repair or maintain the premises (see Fox v Patriot Saloon, 166 A.D.3d 950; Wenzel v 16302 Jamaica Ave., LLC, 115 A.D.3d 852). Further, although the plaintiff alleged a violation of a statutory duty, and the defendant retained a right to reenter the premises for the purposes of inspection and repairs, the defendant demonstrated, prima facie, that the alleged defect was not a significant structural or design defect in violation of a specific statutory provision (see Behluli v 228 Hotel Corp., 172 A.D.3d 1151, 1152; Derosas v Rosmarins Land Holdings, LLC, 148 A.D.3d 988, 991; Regensdorfer v Central Buffalo Project Corp., 247 A.D.2d 931; Quinones v 27 Third City King Rest., 198 A.D.2d 23). In opposition, the plaintiff failed to raise a triable issue of fact, since the statutory provisions that the bill of particulars alleged were violated, including, in particular, Administrative Code of the City of New York § 27-375(f), did not apply to the subject staircase (see Cusumano v City of New York, 15 N.Y.3d 319; Wenzel v 16302 Jamaica Ave., LLC, 115 A.D.3d at 853). Additionally, the plaintiff's affidavit submitted in opposition contradicted her earlier deposition testimony and raised only a feigned issue of fact (see Williams v Foster, 222 A.D.3d 1035, 1036). Further, the affidavit of the plaintiff's expert was conclusory and lacked probative value (see Greco v Starbucks Coffee Co., 58 A.D.3d 681; Walker v 127 W. 22nd St. Assoc., 281 A.D.2d 539).
Contrary to the plaintiff's contention, the Supreme Court properly declined to deny the defendant's motion for summary judgment dismissing the complaint based on the alleged spoliation of the staircase in the absence of a motion pursuant to CPLR 3126 seeking spoliation sanctions (see CPLR 2211, 2214[a], 2215; Khaolaead v Leisure Video, 18 A.D.3d 820, 821).
Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as was not predicated on a violation of the Multiple Dwelling Law and the Real Property Law.
IANNACCI, J.P., CHAMBERS, MALTESE and WAN, JJ., concur.