| Greco v Starbucks Coffee Co. |
| 2009 NY Slip Op 00343 [58 AD3d 681] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Alexandria Greco, Appellant, v Starbucks CoffeeCompany et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (George N. TompkinsIII and Richard E. Lerner of counsel), for respondent Starbucks Coffee Company. Susan Owens, White Plains, N.Y. (Joseph M. Zecca of counsel), for respondent 29 ParkPlace, LLC.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), datedNovember 14, 2007, as granted the separate motions of the defendants Starbucks CoffeeCompany and 29 Park Place, LLC, for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff alleges that she sustained injuries when she slipped and fell on an accumulationof water on the floor of a cafÉ operated by the defendant Starbucks Coffee Company(hereinafter Starbucks) at premises owned by the defendant 29 Park Place, LLC (hereinafter 29Park Place).
"An out-of-possession landlord is not liable for injuries sustained on the premises unless thelandlord retains control of the premises or is contractually obligated to perform maintenance andrepairs" (Seney v Kee Assoc., 15AD3d 383, 384 [2005]). Here, 29 Park Place, the out-of-possession landlord of the subjectpremises rented by Starbucks, established its prima facie entitlement to judgment as a matter oflaw by demonstrating that it relinquished control of the leased premises, was [*2]not obligated under the terms of the lease to maintain or repair thepremises, and did not violate a specific statutory provision (see O'Connell v L.B. Realty Co., 50 AD3d 752 [2008]; Gavallas v Health Ins. Plan of GreaterN.Y., 35 AD3d 657, 658 [2006]). In opposition, the plaintiff failed to raise a triableissue of fact as to whether the allegedly dangerous condition constituted a specific statutoryviolation (id.; see Stein vHarriet Mgt., LLC, 51 AD3d 1007 [2008]; Couluris v Harbor Boat Realty, Inc., 31 AD3d 686 [2006]).
Starbucks established its prima facie entitlement to judgment as a matter of law bypresenting evidence that it neither created nor had actual or constructive notice of theaccumulation of water (see Roveccio vOak Park at Douglaston Unit Owners Assn., Inc., 51 AD3d 999 [2008]). In opposition,the plaintiff failed to raise a triable issue of fact (see Madrid v City of New York, 42NY2d 1039 [1977]; Jaffe v New YorkCity Tr. Auth., 52 AD3d 784 [2008]; Bernhard v Bank of Montreal, 41 AD3d 180 [2007]; Perlongo v Park City 3 & 4 Apts., Inc.,31 AD3d 409, 411 [2006]). The affidavit of the plaintiff's expert was merely speculative andwithout probative value (see Lee v Cityof New York, 40 AD3d 1048 [2007]).
The plaintiff's remaining contention is without merit (see Martin v City of Cohoes,37 NY2d 162 [1975]). Skelos, J.P., Dillon, McCarthy and Eng, JJ., concur.