Opinion
2013-12-4
Patricia NOTSKAS, respondent, v. LONGWOOD ASSOCIATES, LLC, et al., appellants.
Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford and Daniel C. Rosenberg of counsel), for appellants. Gerard DeCapua, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for respondent.
Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford and Daniel C. Rosenberg of counsel), for appellants. Gerard DeCapua, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Bruno, J.), dated September 5, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly sustained injuries when she was struck by an overhead soffit which fell from the ceiling at premises leased to the plaintiff's employer, which is not a party to this action. The plaintiff's employer leased the premises from the defendants. After the plaintiff commenced this action, the defendants moved for summary judgment dismissing the complaint, contending, inter alia, that, as out-of-possession landlords, they could not be held liable for the plaintiff's injuries. The Supreme Court denied the defendants' motion.
An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute or regulation imposing liability, a contractual provision placing the duty to repair on the landlord, or by a course of conduct by the landlord giving rise to a duty ( see Lugo v. Austin–Forest Assoc., 99 A.D.3d 865, 866, 952 N.Y.S.2d 603; Repetto v. Alblan Realty Corp., 97 A.D.3d 735, 737, 948 N.Y.S.2d 655; Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620; Mercer v. Hellas Glass Works Corp., 87 A.D.3d 987, 988, 930 N.Y.S.2d 18). Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they were out-of-possession landlords, that they were not contractually obligated to maintain the subject soffit, that they did not endeavor to maintain the soffit, and that they did not owe the plaintiff a duty by virtue of any applicable statute or regulation ( see Lugo v. Austin–Forest Assoc., 99 A.D.3d at 866–867, 952 N.Y.S.2d 603; Madry v. Heritage Holding Corp., 96 A.D.3d 1022, 1023, 947 N.Y.S.2d 588; Vialva v. 40 W. 25th St. Assoc., L.P., 96 A.D.3d 735, 736, 945 N.Y.S.2d 723). Contrary to the plaintiff's contention, “the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to a motion” where, as here, the moving party submits other proof, such as deposition testimony with an attorney's affirmation (Vetrano v. J. Kokolakis Contr., Inc., 100 A.D.3d 984, 986, 954 N.Y.S.2d 646; see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229; Maragos v. Sakurai, 92 A.D.3d 922, 923, 938 N.Y.S.2d 908). In opposition, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The defendants' remaining contentions need not be reached in light of the foregoing.
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.