Opinion
58 A.D.3d 681 873 N.Y.S.2d 639 Alexandria GRECO, appellant, v. STARBUCKS COFFEE COMPANY, et al., respondents. 2009-00343 Supreme Court of New York, Second Department January 20, 2009
Anthony J. Scarcella & Associates, P.C., White Plains, N.Y. (M. Sean Duffy of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (George N. Tompkins III and Richard E. Lerner of counsel), for respondent Starbucks Coffee Company.
Susan Owens, White Plains, N.Y. (Joseph M. Zecca of counsel), for respondent 29 Park Place, LLC.
PETER B. SKELOS, J.P., MARK C. DILLON, WILLIAM E. McCARTHY and RANDALL T. ENG, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated November 14, 2007, as granted the separate motions of the defendants Starbucks Coffee Company and 29 Park Place, LLC, for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff alleges that she sustained injuries when she slipped and fell on an accumulation of water on the floor of a café operated by the defendant Starbucks Coffee Company (hereinafter Starbucks) at premises owned by the defendant 29 Park Place, LLC (hereinafter 29 Park Place).
" An out-of-possession landlord is not liable for injuries sustained on the premises unless the landlord retains control of the premises or is contractually obligated to perform maintenance and repairs" ( Seney v. Kee Assoc., 15 A.D.3d 383, 384, 790 N.Y.S.2d 170). Here, 29 Park Place, the out-of-possession landlord of the subject premises rented by Starbucks, established its prima facie entitlement to judgment as a matter of law by demonstrating that it relinquished control of the leased premises, was not obligated under the terms of the lease to maintain or repair the premises, and did not violate a specific statutory provision ( see O'Connell v. L.B. Realty Co., 50 A.D.3d 752, 856 N.Y.S.2d 165; Gavallas v. Health Ins. Plan of Greater N.Y., 35 A.D.3d 657, 658, 829 N.Y.S.2d 131). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the allegedly dangerous condition constituted a specific statutory violation ( id.; see Stein v. Harriet Mgt., LLC, 51 A.D.3d 1007, 859 N.Y.S.2d 243; Couluris v. Harbor Boat Realty, Inc., 31 A.D.3d 686, 820 N.Y.S.2d 282).
Starbucks established its prima facie entitlement to judgment as a matter of law by presenting evidence that it neither created nor had actual or constructive notice of the accumulation of water ( see Roveccio v. Oak Park at Douglaston Unit Owners Assn., Inc., 51 A.D.3d 999, 858 N.Y.S.2d 384). In opposition, the plaintiff failed to raise a triable issue of fact ( see Madrid v. City of New York, 42 N.Y.2d 1039, 399 N.Y.S.2d 205, 369 N.E.2d 761; Jaffe v. New York City Tr. Auth., 52 A.D.3d 784, 861 N.Y.S.2d 388; Bernhard v. Bank of Montreal, 41 A.D.3d 180, 838 N.Y.S.2d 56; Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 411, 818 N.Y.S.2d 158). The affidavit of the plaintiff's expert was merely speculative and without probative value ( see Lee v. City of New York, 40 A.D.3d 1048, 836 N.Y.S.2d 688).
The plaintiff's remaining contention is without merit ( see Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d 687, 332 N.E.2d 867).