Opinion
2015-01587, Index No. 16556/12.
04-20-2016
John DAVIDSON, et al., respondents, v. STEEL EQUITIES, et al., appellants.
London Fischer LLP, New York, N.Y. (James Walsh and Daniel C. Perrone of counsel), for appellants. Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP, Hicksville, N.Y. (Seth Fields and Allen Goldberg of counsel), for respondents.
London Fischer LLP, New York, N.Y. (James Walsh and Daniel C. Perrone of counsel), for appellants.
Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP, Hicksville, N.Y. (Seth Fields and Allen Goldberg of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered January 8, 2015, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe condition” (Walsh v. Super Value, Inc., 76 A.D.3d 371, 375, 904 N.Y.S.2d 121 ; see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; see also Peralta v. Henriquez, 100 N.Y.2d 139, 143–144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 ), taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419 ; Peralta v. Henriquez, 100 N.Y.2d at 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 ; Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 ; Basso v. Miller, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). However, “[a]n out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” (Duggan v. Cronos Enters., Inc., 133 A.D.3d 564, 564, 18 N.Y.S.3d 555 ; see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 858 N.E.2d 1127 ; Chapman v. Silber, 97 N.Y.2d 9, 19–20, 734 N.Y.S.2d 541, 760 N.E.2d 329 ; Wenzel v. 16302 Jamaica Ave., LLC, 115 A.D.3d 852, 852, 982 N.Y.S.2d 489 ). Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Nelson v. Cunningham Assoc. L.P., 77 A.D.3d 638, 908 N.Y.S.2d 713 ).
Here, in support of their motion for summary judgment dismissing the complaint, the defendants failed to demonstrate, prima facie, that they were out-of-possession landlords that did not have a contractual duty to remedy the specific dangerous or defective condition alleged here (see Quituizaca v. Tucchiarone, 115 A.D.3d 924, 982 N.Y.S.2d 524 ). Moreover, contrary to the defendants' contention, they failed to demonstrate, prima facie, that they did not have notice of the alleged dangerous or defective condition. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not review the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Tsekhanovskaya v. Starrett City, Inc., 90 A.D.3d 909, 910, 935 N.Y.S.2d 128 ).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.