| Greis v Eckerd Corp. |
| 2008 NY Slip Op 07087 [54 AD3d 895] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Susanne Greis, Plaintiff, v Eckerd Corporation, Appellant,and Mandarin Realty Company, Respondent, et al., Defendant. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Patrick D. Geraghtyand Debra A. Adler of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Eckerd Corporationappeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County(Kitzes, J.), dated April 9, 2007, as granted that branch of the motion of the defendant MandarinRealty Company which was for summary judgment dismissing the cross claims of the defendantEckerd Corporation insofar as asserted against the defendant Mandarin Realty Corporation.
Ordered that order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Mandarin Realty Company which was for summaryjudgment dismissing the cross claims of the defendant Eckerd Corporation insofar as assertedagainst it is denied.
The plaintiff allegedly slipped and fell on snow on a ramp leading to a store of the defendantEckerd Corporation (hereinafter Eckerd). The store was located within a shopping center ownedby the defendant Mandarin Realty Company (hereinafter Mandarin). The ramp was locatedwithin the sidewalk abutting the rear of the store.
Mandarin moved for summary judgment, inter alia, dismissing the cross claims assertedagainst it by Eckerd, contending it was an out-of possession landlord that had surrendedpossession and control of the premises. In the order appealed from, the Supreme Court grantedthe motion. We [*2]reverse the order insofar as appealed from.
The copy of the lease submitted by Mandarin in support of its motion for summary judgmentfailed to establish, as a matter of law, that it was an out-of-possession landlord. In one provisionthe lease states, inter alia, that Eckerd was "responsible for the removal of snow and ice fromsidewalks immediately in front of and to the rear of the Demised Premises." However, thedescription of the demised premises contained in the lease did not include the sidewalks abuttingthe front and the rear of the building. Furthermore, in another lease provision, Mandarin agreedto repair and maintain the common areas in a reasonably safe condition and to keep the commonareas free of "snow, ice, water, rubbish and other obstructions," and the lease described the term"common areas" as "any and all parking areas, roads, streets, drives, passageways,sidewalks, landscaped areas, walkways, entrances and exits" (emphasis added).
Under these circumstances, a triable issue of fact exists as to whether, pursuant to the lease,Mandarin was an out-of-possession landlord. Thus, Mandarin failed to establish, prima facie, itsentitlement to judgment as a matter of law regarding that branch of its motion which was forsummary judgment dismissing the cross claims asserted against it by Eckerd, and that branch ofits motion should have been denied (seeDeerr'Matos v Ulysses Upp, LLC, 52 AD3d 645 [2008]; Polatsek v Congregation Bais Arye, 48AD3d 438 [2008]; see generally, Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). Mastro, J.P., Florio, Dickerson and Belen, JJ., concur.