Opinion
2016–13265 Index No. 5324/12
11-13-2019
Susan ROBBINS, Respondent, v. 237 AVENUE X, LLC, et al., Appellants.
Hoffman Roth & Matlin, LLP, New York, N.Y. (Joshua R. Hoffman of counsel), for appellants. William Pager, Brooklyn, NY, for respondent.
Hoffman Roth & Matlin, LLP, New York, N.Y. (Joshua R. Hoffman of counsel), for appellants.
William Pager, Brooklyn, NY, for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendants 237 Avenue X, LLC, Eugene Simonetti, and Eugene Simonetti, Jr., for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision granting the motion; as so modified, the order is affirmed, without costs or disbursements.
This personal injury action arises from an incident in which the plaintiff, a patron of a deli located in Brooklyn, upon exiting the bathroom at the rear of the deli, tripped over boxes that had been stacked in the corridor immediately outside the bathroom. The deli was operated by the defendant F.X. Express Corp. (hereinafter the tenant) and owned by the defendant 237 Avenue X, LLC, of which the defendants Eugene Simonetti and Eugene Simonetti, Jr., were joint owners (hereinafter collectively the landlord defendants).
The tenant and the landlord defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied both motions. The tenant and the landlord defendants appeal.
A landowner has a duty to maintain his or her premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). However, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous (see Benjamin v. Trade Fair Supermarket, Inc., 119 A.D.3d 880, 881, 989 N.Y.S.2d 872 ; Neiderbach v. 7–Eleven, Inc., 56 A.D.3d 632, 868 N.Y.S.2d 91 ). A condition is open and obvious if it is "readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident" ( Lazic v. Trump Vil. Section 3, Inc., 134 A.D.3d 776, 777, 20 N.Y.S.3d 643 ). The question of whether a condition is open and obvious "cannot be divorced from the surrounding circumstances" ( Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 713, 917 N.Y.S.2d 896 ). It is usually a question of fact properly resolved by a jury (see Simon v. Comsewogue Sch. Dist., 143 A.D.3d 695, 696, 39 N.Y.S.3d 180 ; Lazic v. Trump Vil. Section 3, Inc., 134 A.D.3d at 776, 20 N.Y.S.3d 643 ; Capasso v. Village of Goshen, 84 A.D.3d 998, 999, 922 N.Y.S.2d 567 ).
Here, the tenant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it. The evidence submitted by the tenant in support of its motion, including, inter alia, the plaintiff's deposition testimony regarding the accident, failed to eliminate all triable issues of fact as to whether the stacked boxes constituted an open and obvious condition, and whether the stacked boxes constituted an inherently dangerous condition. The evidence likewise failed to establish, prima facie, that the tenant did not create or have notice of the condition. Accordingly, we agree with the Supreme Court's determination to deny the tenant's motion for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
However, we disagree with the Supreme Court's determination to deny the landlord defendants' motion for summary judgment dismissing the complaint insofar as asserted against them. "An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct" ( Casson v. McConnell, 148 A.D.3d 863, 864, 49 N.Y.S.3d 711 [internal quotation marks omitted]; see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51 ; Byrd v. Brooklyn 46 Realty, LLC, 129 A.D.3d 882, 883, 10 N.Y.S.3d 642 ; Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ). Here, the landlord defendants' submissions failed to establish, prima facie, that they were out-of-possession landlords. The copy of the lease the landlord defendants submitted was illegible, and the deposition testimony of Eugene Simonetti, Jr., failed to establish, prima facie, that the landlord defendants had relinquished control over the premises to such a degree as to extinguish their duty to maintain the premises (see Washington–Fraser v. Industrial Home for the Blind, 164 A.D.3d 543, 545, 83 N.Y.S.3d 503 ; see generally Yehia v. Marphil Realty Corp., 130 A.D.3d 615, 617, 13 N.Y.S.3d 194 ).
Nevertheless, the landlord defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of the condition (see Amster v. Kromer, 157 A.D.3d 922, 923, 67 N.Y.S.3d 494 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the landlord defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
MASTRO, J.P., BALKIN, IANNACCI and CHRISTOPHER, JJ., concur.