Opinion
2011-08-2
Toni SCIAMMARELLA, et al., appellants,v.MANORVILLE POSTAL ASSOCIATES, respondent.
Richard A. Engelberg, P.C., Plainview, N.Y., for appellants.Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated March 3, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Toni Sciammarella, then an employee of the United States Postal Service (hereinafter the Postal Service), allegedly sustained injuries when she fell after stepping into a hole in the parking lot of the premises leased to the Postal Service by the defendant.
“An out-of-possession landlord may not be held liable for injuries occurring on its premises unless it is contractually obligated to perform maintenance and repairs or it has retained control over the premises” ( Salaices v. Gar–Ben Assoc., 82 A.D.3d 740, 741, 918 N.Y.S.2d 510; see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566–567, 516 N.Y.S.2d 451, 509 N.E.2d 51). The defendant established its prima facie entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord that did not retain control over the premises and was not contractually obligated to maintain or repair the parking lot ( see Sanchez v. Barnes & Noble, Inc., 59 A.D.3d 698, 699, 874 N.Y.S.2d 528; Yadegar v. International Food Mkt., 37 A.D.3d 595, 596–597, 830 N.Y.S.2d 244; Brockington v. Brookfield Dev. Corp., 20 A.D.3d 382, 382–383, 798 N.Y.S.2d 147).
In opposition, the plaintiffs failed to raise a triable issue of fact ( see Lauer v. Great S. Bay Seafood Co., 299 A.D.2d 325, 327, 750 N.Y.S.2d 305; Amarante v. Village of Tarrytown, 226 A.D.2d 488, 640 N.Y.S.2d 619; see also Pala v. D. Braf, Ltd., 284 A.D.2d 382, 726 N.Y.S.2d 687).