| Sparozic v Bovis Lend Lease LMB, Inc. |
| 2008 NY Slip Op 04071 [50 AD3d 1121] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Suzy Sparozic, Appellant, v Bovis Lend Lease LMB, Inc.,Formerly Known as Lehrer McGovern Bovis, Inc., et al., Respondents, et al.,Defendants. |
—[*1] Newman Fitch Altheim Myers, P.C., New York, N.Y. (Ian F. Harris and Adrienne Scholz ofcounsel), for respondent Bovis Lend Lease LMB, Inc., formerly known as Lehrer McGovernBovis, Inc. Marks, O'Neill, O'Brien & Courtney, P.C., Elmsford, N.Y. (James E. Romer and John Moranof counsel), for respondent GCT Venture, Inc. Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (William G. Ballaine and Ameet B.Kabrawala of counsel), for respondents American Premier Underwriters, Inc., formerly known asPenn Central Corporation, and New York & Harlem Railroad Company. Alan I. Lamer, Elmsford, N.Y. (Fiedelman & McGaw [Dawn C. DeSimone and James K.O'Sullivan] of counsel), for respondent Jones Lang LaSalle Incorporated, formerly known asLaSalle Partners Incorporated.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of (1) an order of the Supreme Court, Putnam County (O'Rourke, J.), datedDecember 21, 2005, as granted that branch of the motion of the defendants American PremierUnderwriters, Inc., formerly known as Penn Central Corporation, and New York & HarlemRailroad Company which was for summary judgment dismissing the complaint insofar asasserted against them, (2) an [*2]order of the same court datedJanuary 6, 2006, as granted that branch of the motion of the defendant GCT Venture, Inc., whichwas for summary judgment dismissing the complaint insofar as asserted against it, (3) an order ofthe same court dated January 6, 2006, as granted that branch of the motion of the defendantBovis Lend Lease LMB, Inc., formerly known as Lehrer McGovern Bovis, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it, and (4) an order of thesame court dated January 10, 2006, as granted that branch of the motion of the defendant JonesLang LaSalle Incorporated, formerly known as LaSalle Partners Incorporated, which was forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
The plaintiff alleged that she tripped and fell in a passageway of Grand Central Terminalwhile she was walking to her train. She alleged that she caught her toe on a section of the floorraised about one inch above a "sunken" expansion joint cover.
"An out-of-possession landlord is not liable for personal injuries sustained on the premisesunless the landlord retains control of the property or is contractually obligated to performmaintenance and repairs" (Dominguez v Food City Mkts., 303 AD2d 618, 619 [2003]; see Ingargiola v Waheguru Mgt., 5AD3d 732, 733 [2004]).
Here, the defendants American Premier Underwriters, Inc., formerly known as Penn CentralCorporation (hereinafter APU), and New York & Harlem Railroad Company (hereinafter NY &HRR) met their burden on their motion for summary judgment by demonstrating that they wereout-of-possession landlords who were not obligated to maintain or repair the area of GrandCentral Terminal where the plaintiff allegedly fell (see Yadegar v International Food Mkt., 37 AD3d 595 [2007]; Gavallas v Health Ins. Plan of GreaterN.Y., 35 AD3d 657 [2006]; Lowe-Barrett v City of New York, 28 AD3d 721 [2006];Jackson v United States Tennis Assn., 294 AD2d 470 [2002]). Although the leaseprovided APU and NY & HRR with a right of entry, the plaintiff failed to raise a triable issue offact as to whether the allegedly defective condition constituted a specific statutory violation(see O'Connell v L.B. Realty Co., 50 AD3d 752 [2008]; Ahmad v City of New York, 298 AD2d 473, 474 [2002]; Kilimnik v MirageRest., 223 AD2d 530 [1996]). Accordingly, the Supreme Court properly granted that branchof the motion of APU and NY & HRR which was for summary judgment dismissing thecomplaint insofar as asserted against them.
The defendant GCT Venture, Inc. (hereinafter GCT) established, prima facie, its entitlementto summary judgment by demonstrating that it owed no duty to the plaintiff under itsdevelopment agreement with the Metropolitan Transportation Authority. In opposition, theplaintiff failed to raise a triable issue of fact (see Espinal v Melville Snow Contrs., 98NY2d 136, 139-141 [2002]; Roach vAVR Realty Co., LLC, 41 AD3d 821 [2007]; Torchio v New York City Hous. Auth., 40 AD3d 970 [2007]; DeMartino v Home Depot U.S.A., Inc.,37 AD3d 758 [2007]; Dennebaum v Rotterdam Sq., 6 AD3d 1045 [2004]). Accordingly,the Supreme Court properly granted that branch of GCT's motion which was for summaryjudgment dismissing the complaint insofar as asserted against it.
Finally, the defendant Bovis Lend Lease LMB, Inc., formerly known as Lehrer McGovernBovis, Inc. (hereinafter Bovis), and the defendant Jones Lang LaSalle Incorporated, formerlyknown as LaSalle Partners Incorporated (hereinafter Jones Lang), both met their respective primafacie burdens of establishing entitlement to judgment as a matter of law by demonstrating thatthey owed no duty to the plaintiff (see Morrison v Gerlitzky, 282 AD2d 725 [2001];Burns v City of New York, 156 AD2d 256 [1989]). In opposition, the plaintiff failed toraise a triable issue of fact as to the liability of either Bovis or Jones Lang. Accordingly, theSupreme Court properly granted those branches of the respective motions of Bovis and JonesLang which were for summary judgment dismissing the complaint insofar as asserted againstthem. Rivera, J.P., Covello, Balkin and McCarthy, JJ., concur.