| Brewster v Five Towns Health Care Realty Corp. |
| 2009 NY Slip Op 01076 [59 AD3d 483] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Bessie Brewster, Appellant, v Five Towns Health CareRealty Corp. et al., Respondents, et al., Defendants. |
—[*1] Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y.(Elizabeth T. Geiger and Keith S. Tallbe of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Elliot, J.), entered October 25, 2007, which granted themotion of the defendants Five Towns Health Care Realty Corp., Herbert Feldman, Louis E.Sedrish exempt marital trust under will dated December 10, 1985, as to a 26.83% undividedinterest, Louis Sedrish Trust for the benefit of the issue of Paul Sedrish as to a 23% undividedinterest, and Louis B. Sedrish Credit Shelter Trust under will dated December 10, 1985, as to a50.17% undivided interest, all tenants in common care of Michael B. Sedrish, 38 The Oaks,Roslyn Estates, New York 11576, for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff alleges that while working as a maintenance worker at the nonparty WoodmereRehabilitation and Health Care Center, Inc., she slipped and fell on debris adjacent to a dumpsteron the grounds of the facility. The Supreme Court granted the respondents' motion for summaryjudgment dismissing the complaint insofar as asserted against them.
An out-of-possession landlord is not liable for injuries occurring on the premises unless ithas retained control of the premises or is contractually obligated to perform maintenance andrepairs (see Tragale v 485 KingsCorp., 39 AD3d 626 [2007]; Rhian v PABR Assoc., LLC, 38 AD3d 637 [2007]; Lowe-Barrett v City of New York, 28AD3d 721 [2006]). Reservation of a right to enter the premises for the purposes ofinspection and repair may constitute sufficient retention of control to impose liability for injuriescaused by a dangerous condition, but only where the condition violates a specific statutoryprovision (see Conte v Frelen Assoc.,LLC, 51 AD3d 620, 621 [2008]). In support of their motion for summary judgment, therespondents satisfied their burden by submitting documentary evidence demonstrating that theywere out-of-possession landlords that were not contractually obligated to maintain or repair thepremises. In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b]). While the respondents retained a right to enter the leased premises, the plaintiff failed toraise a triable issue of fact as to whether the alleged defect constituted a specific statutoryviolation (see Conte v Frelen Assoc.,LLC, 51 AD3d 620, 621 [2008]). Moreover, the motion for summary judgment was notpremature, since the plaintiff failed to offer an evidentiary basis to suggest that discovery maylead to relevant evidence. The plaintiff's "hope and speculation that evidence sufficient to defeatthe motion might be uncovered during discovery was an insufficient basis for denying themotion" (Conte v Frelen Assoc., LLC, 51 AD3d at 621; see Lopez v WS Distrib., Inc., 34AD3d 759, 760 [2006]). Spolzino, J.P., Santucci, Balkin and Chambers, JJ., concur.[See 2007 NY Slip Op 33402(U).]