Opinion
2014-05-7
Daniel P. MILHAM, appellant, v. PORT AUTHORITY OF NEW YORK & NEW JERSEY, respondent.
Giuliano, McDonnell & Perrone, LLP, New York, N.Y. (Nicholas P. Giuliano and Matthew M. Gorden of counsel), for appellant. Hill Rivkins LLP, New York, N.Y. (Michael D. Wilson and Brian P. Eisenhower of counsel), for respondent.
Giuliano, McDonnell & Perrone, LLP, New York, N.Y. (Nicholas P. Giuliano and Matthew M. Gorden of counsel), for appellant. Hill Rivkins LLP, New York, N.Y. (Michael D. Wilson and Brian P. Eisenhower of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated June 7, 2012, which granted the defendant's 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 denied.
The plaintiff was an employee of American Stevedoring, Inc., which is not a party to this action. During the course of his employment, the plaintiff allegedly sustained personal injuries when a vehicle he was operating made contact with a pothole. The incident occurred within a premises that American Stevedoring, Inc., leased from the defendant. The defendant moved for summary judgment, contending that it was an out-of-possession landlord which could not be held liable for the plaintiff's injuries. The Supreme Court granted the motion.
An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by, inter alia, contract or a course of conduct ( see Lee v. Second Ave. Vil. Partners, LLC, 100 A.D.3d 601, 602, 953 N.Y.S.2d 259;Lugo v. Austin–Forest Assoc., 99 A.D.3d 865, 952 N.Y.S.2d 603;Vialva v. 40 W. 25th St. Accoc., L.P., 96 A.D.3d 735, 945 N.Y.S.2d 723;Goggins v. Nidoj Realty Corp., 93 A.D.3d 757, 940 N.Y.S.2d 674;Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 929 N.Y.S.2d 620;Mercer v. Hellas Glass Works Corp., 87 A.D.3d 987, 988, 930 N.Y.S.2d 18). “ ‘[C]ontrol is the test which measures generally the responsibility in tort of the owner of real property’ ” ( Gronski v. County of Monroe, 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219, quoting Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772).
Here, the defendant submitted evidence sufficient to establish, prima facie, its entitlement to judgment as a matter of law. Pursuant to the lease agreement, the tenant was responsible for making all pavement repairs, and evidence submitted by the defendant, including excerpts from the deposition testimony of the plaintiff and the defendant's employees, demonstrated, prima facie, that it did not endeavor to perform such maintenance ( see Vialva v. 40 W. 25th St. Assoc., L.P., 96 A.D.3d 735, 945 N.Y.S.2d 723;Chapman v. MCS Realty, LLC, 92 A.D.3d 913, 938 N.Y.S.2d 900;Sciammarella v. Manorville Postal Assoc., 87 A.D.3d 530, 927 N.Y.S.2d 798). However, in opposition , the plaintiff submitted evidence sufficient to raise a triable issue of fact as to whether the defendant, by its course of conduct, retained control over the premises. The plaintiff submitted,inter alia, his own deposition testimony and the deposition testimony of the defendant's employees, which raised triable issues of fact as to whether the defendant assumed a duty to maintain the subject premises by its course of conduct ( see Gronski v. County of Monroe, 18 N.Y.3d 374, 940 N.Y.S.2d 518, 963 N.E.2d 1219;Massucci v. Amoco Oil Co., 292 A.D.2d 351, 738 N.Y.S.2d 386). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.