| McComish v Luciano's Italian Rest. |
| 2008 NY Slip Op 08717 [56 AD3d 534] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Donna R. McComish, Respondent, v Luciano's ItalianRestaurant, Respondent, and Michael Salvatore et al., Appellants. |
—[*1] Keegan, Keegan, Keegan & Strutt, LLP, White Plains, N.Y. (Jeffrey J. Keegan of counsel),for plaintiff-respondent. Weiner, Millo & Morgan, LLC, New York, N.Y. (Douglas A. Gingold of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendants Michael Salvatore andBernandino Savone appeal from an order of the Supreme Court, Westchester County (DonovanJ.), entered July 23, 2007, which denied their motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with one bill of costs, and the motion of thedefendants Michael Salvatore and Bernandino Savone for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them is granted.
The plaintiff allegedly was injured when she fell into a depression in a parking area in frontof a building owned by the defendants Michael Salvatore and Bernandino Savone (hereinafter theowners) and leased by Luciano's Italian restaurant (hereinafter the restaurant). The area where theplaintiff fell contained a traffic signal box, owned by the State of New York, which wassurrounded by raised asphalt. The restaurant had paved over the area on a number of occasions,thus allegedly causing a depression to form around the traffic signal box.[*2]
The owners established their prima facie entitlement tojudgment as a matter of law by demonstrating that they were out-of-possession landlords whoneither retained control over the parking area nor were contractually obligated by the lease tomaintain or repair it (see Valenti v 400Carlls Path Realty Corp., 52 AD3d 696 [2008]; Yadegar v International Food Mkt., 37 AD3d 595, 596 [2007]).
In opposition, the plaintiff and the restaurant failed to raise a triable issue of fact. Whilecontrol "may be evidenced by lease provisions making the landlord responsible for repairs or by acourse of conduct demonstrating that the landlord has assumed responsibility to maintain aparticular portion of the premises" (EverWin, Inc. v 1-10 Indus. Assoc., LLC, 33 AD3d 845, 846 [2006]), here, the leaseobligated the restaurant, not the owners, to maintain the parking area. Although the lease alsorequired the restaurant to submit proposed construction and repair plans to the owners for theirapproval, such provision, in and of itself, is "insufficient to establish the requisite degree ofcontrol necessary for the imposition of liability with respect to an out-of-possession landlord" (Schwegler v City of Niagara Falls, 21AD3d 1268, 1270 [2005]; see Ferrov Burton, 45 AD3d 1454, 1455 [2007]). Moreover, there is no evidence that therestaurant ever complied with that provision. Furthermore, even if that provision could beinterpreted as the owners' reservation of the right to enter the premises to make repairs, theplaintiff and the restaurant failed to raise a triable issue of fact as to whether the alleged defectiveparking lot condition constituted a specific statutory violation such that liability could beimposed (see Conte v Frelen Assoc.,LLC, 51 AD3d 620, 620-621 [2008]; Sparozic v Bovis Lend Lease LMB, Inc., 50 AD3d 1121, 1122[2008]). Finally, there is no evidence that the defendants leased the building to the restaurantknowing that a dangerous condition existed (see Landau v Beach Haven Shopping Ctr.,276 AD2d 752 [2000]).
Accordingly, the Supreme Court should have granted the owners' motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them. Fisher,J.P., Miller, Dillon and Eng, JJ., concur.