| Conte v Frelen Assoc., LLC |
| 2008 NY Slip Op 04308 [51 AD3d 620] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Arlene Conte et al., Appellants, v Frelen Associates, LLC,Respondent. |
—[*1] Loccisano & Larkin, Hauppauge, N.Y. (Robert X. Larkin and John C. Meszaros of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), datedJanuary 2, 2007, as granted the defendant's motion for summary judgment dismissing thecomplaint. Justice Dillon has been substituted for former Justice Schmidt (see 22NYCRR 670.1 [c]).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Arlene Conte sustained injuries when she tripped and fell over broken concretein a walkway located on premises owned by the defendant.
An out-of-possession owner or lessor is not liable for injuries that occur on the premisesunless the owner or lessor has retained control over the premises or is contractually obligated torepair or maintain the premises (seeLowe-Barrett v City of New York, 28 AD3d 721, 722 [2006]; Dalzell v McDonald'sCorp., 220 AD2d 638, 639 [1995]). Here, the defendant satisfied its burden by submittingdocumentary evidence demonstrating that it was an out-of-possession landlord not contractuallyobligated to maintain or repair the premises. In opposition, the plaintiffs failed to raise a triableissue of fact. Although the defendant reserved the right to enter the leased premises to, inter alia,make repairs upon the tenant's default, the plaintiffs failed to raise a triable issue of fact as towhether the allegedly defective condition constituted a specific statutory violation such thatliability [*2]may be imposed upon the defendantout-of-possession landowner (seeO'Connell v L.B. Realty Co., 50 AD3d 752 [2008]; Ahmad v City of New York,298 AD2d 473, 474 [2002]; Kilimnik v Mirage Rest., 223 AD2d 530 [1996]).
Contrary to the plaintiffs' contention, the court did not err by considering the evidence in thedefendant's reply papers because it was submitted in direct response to allegations raised in theiropposition papers (see Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]).Moreover, the motion for summary judgment was not premature since the plaintiffs failed tooffer an evidentiary basis to suggest that discovery may lead to relevant evidence; their hope andspeculation that evidence sufficient to defeat the motion might be uncovered during discoverywas an insufficient basis for denying the motion (see Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]). Rivera,J.P., Florio, Dillon and Balkin, JJ., concur.