| Lalicata v 39-15 Skillman Realty Co., LLC |
| 2009 NY Slip Op 05094 [63 AD3d 889] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Angela Lalicata et al., Respondents, v 39-15 SkillmanRealty Co., LLC, et al., Appellants. |
—[*1] Mark E. Weinberger, P.C., Rockville, Centre, N.Y. (Marc J. Musman of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (Rosengarten, J.), dated November 13, 2008, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On November 21, 2005 the plaintiff Angela Lalicata (hereinafter the plaintiff) allegedly wasinjured when she tripped and fell on a cracked or chipped step while descending a staircase in abuilding owned by the defendants 39-15 Skillman Realty Co., LLC, and Skillman Realty Co.The plaintiff used this staircase to access the basement of the building, which her employerBrooks Brothers, Inc. (hereinafter Brooks Brothers), leased from the defendants. Aftercommencement of the instant action, the defendants moved for summary judgment dismissingthe complaint. The Supreme Court denied the motion, and we affirm.
"An out-of-possession landlord is not liable for injuries that occur on its premises unless itretains control over the premises or is contractually bound to repair unsafe conditions"(Taylor v Lastres, 45 AD3d 835, 835 [2007]; see Dunitz v J.L.M. ConsultingCorp., 22 AD3d 455 [2005]; Roveto v VHT Enters., Inc., 17 AD3d 341, 341-342[2005]; Scott v Bergstol, 11 AD3d 525, 526 [2004]). Here, the Supreme Court properlydetermined that the defendants failed to establish their prima facie entitlement to judgment as amatter of law by demonstrating that they did not maintain control of the subject staircase or thatthey were not contractually obligated by their lease to maintain or repair the allegedly defectivecondition thereat (see Ever Win, Inc. v 1-10 Indus. Assoc., LLC, 33 AD3d 845 [2006];Zeppetelli v 1372 Broadway, LLC, 8 AD3d 665 [2004]). Although the defendantsestablished, inter alia, that they did not retain an office in the building and that employees ofBrooks Brothers were responsible for painting and sweeping the staircase, they failed to providea complete copy of the lease between the defendants and Brooks Brothers demonstrating theirlack of control or contractual obligation to maintain the stairs (see Robinson v City of NewYork, 37 AD3d 447, 448 [2007]; Rosas v 397 Broadway Corp., 19 AD3d 574[2005]; Winby v Kustas, 7 AD3d 615 [2004]). Mastro, J.P., Dillon, Santucci and Balkin,JJ., concur.