Summary
finding that defendants "met their prima facie burden of demonstrating their status as out-of-possession owners" because eviction proceedings after foreclosure sale "had been commenced and were pending"
Summary of this case from Smith v. RMS Residential Props., LLCOpinion
2003-04347.
Decided March 8, 2004.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants Yasuda Bank and Trust Company (USA) and Delta Funding Corp. appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated April 3, 2003, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
McCabe, Collins, McGeough Fowler, LLP, Mineola, N.Y. (Patrick M. Murphy of counsel), for appellants.
Reingold Tucker, Brooklyn, N.Y. (Jordan W. Tucker of counsel), for respondents.
Before: GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.
The plaintiffs sustained injuries as a result of a gas explosion in their residence on June 23, 1997, which originated in an area where an illegal gas diversion line had been installed. Several months before the explosion, the defendant Yasuda Bank and Trust Company (USA) (hereinafter Yasuda) had acquired title to the property following a foreclosure sale, but neither Yasuda nor its servicing agent, the defendant Delta Funding Corp. (hereinafter Delta), were given access to the property. The former owner of the property, who, as the landlord, entered into a lease with the plaintiffs, was still in possession of the property at the time of the explosion. Eviction proceedings against the former owner and the plaintiffs had been commenced and were pending. The former owner of the property was arrested and charged with reckless endangerment, grand larceny, and theft of services.
It is well settled that "the person in possession and control of property is best able to identify and prevent any harm to others" ( Butler v. Rafferty, 100 N.Y.2d 265, 270). Hence, an out-of-possession owner will not be liable for injuries that occur on the premises unless it has retained control over the premises or is contractually obligated to repair or maintain the premises ( see Eckers v. Suede, 294 A.D.2d 533; Angwin v. SRF Partnership, 285 A.D.2d 570, 571).
Yasuda and Delta met their prima facie burden of demonstrating their status as out-of-possession owners, and the plaintiffs failed to raise a triable issue of fact that Yasuda and Delta either retained control of the premises or were contractually obligated to keep the property in good repair ( see Krentsel v. Salon Zorina, 292 A.D.2d 506). The record contains no evidence of any contractual relationship among Yesuda, Delta, and the plaintiffs, and the plaintiffs failed to controvert the prima facie evidence that the appellants had no access to the premises before the explosion. Under the circumstances, the Supreme Court should have granted summary judgment and dismissed the complaint insofar as asserted against Yasuda and Delta ( see e.g. Eckers v. Suede, supra).
The plaintiffs' remaining contentions are without merit.
KRAUSMAN, J.P., SCHMIDT, COZIER and MASTRO, JJ., concur.