Opinion
807 CA 18–02295
10-04-2019
Joseph ADDEO, Plaintiff–Respondent–Appellant, v. CLARIT REALTY, LTD., Defendant–Appellant-Respondent.
BARCLAY DAMON LLP, BUFFALO (DENNIS R. MCCOY OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT. BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
BARCLAY DAMON LLP, BUFFALO (DENNIS R. MCCOY OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT.
BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendant's motion and dismissing the complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell while walking through an entryway into a building owned by defendant and leased to plaintiff's employer. Defendant appeals and plaintiff cross-appeals from an order that denied defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on the issue of negligence.
With respect to the appeal and cross appeal, we conclude that plaintiff established as a matter of law that a dangerous condition existed on defendant's property that caused him to fall, i.e., an improperly secured metal strip along the bottom of a doorway (see Rinallo v. St. Casimir Parish, 138 A.D.3d 1440, 1441, 31 N.Y.S.3d 711 [4th Dept. 2016] ; cf. Werner v. Kaleida Health, 96 A.D.3d 1569, 1570, 947 N.Y.S.2d 264 [4th Dept. 2012] ), and defendant failed to raise an issue of fact regarding the existence of a dangerous condition or the cause of plaintiff's fall (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). We agree with defendant on its appeal, however, that Supreme Court erred in denying its motion inasmuch as it established as a matter of law that it was an out-of-possession landlord that had no duty to maintain or repair the metal strip on which plaintiff allegedly tripped and plaintiff failed to raise an issue of fact in opposition (see generally Ferro v. Burton, 45 A.D.3d 1454, 1454–1455, 846 N.Y.S.2d 850 [4th Dept. 2007] ). We therefore modify the order accordingly. For the same reason, we conclude with respect to plaintiff's cross appeal that the court properly denied his cross motion.
It is well settled that " ‘an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable ... for personal injuries caused by an unsafe condition existing on the premises’ " ( Balash v. Melrod, 167 A.D.3d 1442, 1442, 90 N.Y.S.3d 741 [4th Dept. 2018] ; see Ferro, 45 A.D.3d at 1455, 846 N.Y.S.2d 850 ). Here, in support of its motion, defendant submitted the lease between defendant and plaintiff's employer, which provided that the lessee was responsible for all maintenance and repair of the premises except for "Major Improvements," which the lease defined as "any major repair (repairs that are not of the nature of ordinary maintenance such as local patches, caulking, flashing)" including "replacement of the roof, replacement of load-bearing walls and foundations, [and] repairs to the concrete floor." We conclude that maintenance of the allegedly bent or defective metal strip was not a "Major Improvement[ ]" under the lease (see generally Regensdorfer v. Central Buffalo Project Corp., 247 A.D.2d 931, 932, 668 N.Y.S.2d 291 [4th Dept. 1998] ).
Further, the record established that defendant relinquished control of the premises. The fact that, under the lease, defendant reserved the right to enter the leased premises for purposes of inspection and performing "Major Improvements," is " ‘insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord’ " ( Ferro, 45 A.D.3d at 1455, 846 N.Y.S.2d 850 ). "[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists" ( Regensdorfer, 247 A.D.2d at 932, 668 N.Y.S.2d 291 ), and plaintiff failed to allege a specific statutory violation pertaining to the metal strip (see Brown v. BT–Newyo, LLC, 93 A.D.3d 1138, 1138–1139, 941 N.Y.S.2d 343 [3d Dept. 2012], lv denied 19 N.Y.3d 815, 955 N.Y.S.2d 553, 979 N.E.2d 814 [2012] ; Kilimnik v. Mirage Rest., 223 A.D.2d 530, 531, 635 N.Y.S.2d 702 [2d Dept. 1996] ). Although plaintiff also contends that the concrete comprising the stairs and entryway where plaintiff fell was in a state of disrepair and alleges related violations of the Property and Maintenance Code of New York, the state of the concrete was not identified as a defective condition in plaintiff's bill of particulars and was instead improperly raised for the first time in opposition to defendant's motion and in support of his cross motion (see Flynn v. Haddad, 109 A.D.3d 1209, 1210, 971 N.Y.S.2d 639 [4th Dept. 2013] ; Marchetti v. East Rochester Cent. School Dist., 26 A.D.3d 881, 881, 808 N.Y.S.2d 877 [4th Dept. 2006] ). In any event, plaintiff testified at his deposition that he tripped on a bent metal strip only, not on defective concrete.
In light of our determination, we do not address the remaining contentions of either party.