| Hart v O'Brien |
| 2010 NY Slip Op 02903 [72 AD3d 1257] |
| April 8, 2010 |
| Appellate Division, Third Department |
| Thomas Hart, Appellant, v Thomas J. O'Brien,Individually and Doing Business as Albany Diamond Jewelers, et al., Defendants, and Mary E.Naughter, Respondent. |
—[*1] Law Office of Joseph Buttridge, Albany (Joseph W. Buttridge of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (McDonough, J.), entered January 28,2009 in Albany County, which granted defendant Mary E. Naughter's motion for summaryjudgment dismissing the complaint against her.
In October 2004, plaintiff was injured by a fall in a pothole as he was walking through aparking lot behind a commercial building in the Town of Guilderland, Albany County. Thebuilding was owned by defendant Mary E. Naughter (hereinafter defendant) and her husband.Defendant Thomas J. O'Brien operated an independent jewelry business in the building, whichhe had rented on a month-to-month basis under an oral lease since 2000. Plaintiff commencedthis [*2]action against O'Brien and defendant.[FN*]After discovery was completed, defendant moved for summary judgment dismissing thecomplaint against her. Supreme Court granted the motion, and plaintiff now appeals.
Plaintiff contends that Supreme Court erred in determining that defendant, as anout-of-possession landlord, could not be held liable for plaintiff's injuries. With certainexceptions, " '[a]n out-of-possession landlord is generally not responsible for the maintenance orrepair of leased premises; however, one who retains control of the premises or contracts to repairor maintain the property may be liable for defects' " (Grady v Hoffman, 63 AD3d 1266, 1268 [2009], quotingHenness v Lusins, 229 AD2d 873, 873-874 [1996]; see Davison v Wiggand, 259AD2d 799, 800 [1999], lv denied 94 NY2d 751 [1999]). O'Brien testified that he leasedthe property pursuant to an oral agreement he had reached with defendant's husband by which,among other things, O'Brien would take responsibility for repairs and maintenance of theproperty. Accordingly, O'Brien testified that he shoveled walkways, raked, swept, and plowedthe parking lot, maintained the lighting in the parking lot and, on one occasion, paid to have thelot resealed and the lines repainted. Without obtaining permission from defendant or herhusband, O'Brien replaced landscaping, repainted the building's interior and parts of its exterior,recarpeted the interior, and installed new showroom fixtures. O'Brien paid utility bills andproperty taxes, and defendant and her husband did not reimburse him for these expenditures orfor his costs for maintenance or repairs. They had no keys to the building, maintained no officethere, and were not involved in the operation of O'Brien's business (contrast Stickles v Fuller, 9 AD3d599, 600-601 [2004]). This evidence was sufficient to meet defendant's prima facie burdento establish that the premises were leased without retaining possession or control, thus shiftingthe burden to plaintiff to establish the existence of questions of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Del Giacco v Noteworthy Co., 175 AD2d516, 517 [1991]).
We agree with Supreme Court that plaintiff failed to establish the existence of issues of factas to whether defendant and her husband "exercised any control over the land during thepertinent time, w[ere] contractually obligated to repair the premises, assumed responsibility by acourse of conduct to maintain any portion of the premises, or created a dangerous condition"(Del Giacco v Noteworthy Co., 175 AD2d at 518 [internal citations omitted]). Neitherthe occasional visits made by defendant and her husband to the premises to pick up rent checksnor O'Brien's testimony that he would have consulted defendant before making major structuralchanges in the building were sufficient to establish such questions of fact. A landlord's retentionof "the right to visit the premises, or even to approve alterations, additions or improvements, isinsufficient to establish the requisite degree of control necessary for the imposition of liabilitywith respect to an out-of-possession landlord" (Grady v Hoffman, 63 AD3d at 1268[internal quotation marks and citations omitted]).
Further, contrary to plaintiff's claim, the visits made by defendant and her husband were notsufficient, as described, to present factual questions as to whether they had reserved a right ofreentry to inspect the property, ascertain the need for repairs, or for other purposes reflectingtheir retention of possession or control over the premises (see e.g. Stickles v Fuller, 9AD3d at 600; De Cristofaro v Joann Enters., 243 AD2d 1015, 1017 [1997]). Rather,defendant's uncontradicted testimony established that these visits were always made duringbusiness hours [*3]and when O'Brien was present, and that sheand her husband used the public entrance to the building rather than a back door leading intopersonal space. They parked in a side lot and did not use or enter the rear parking lot whereplaintiff was injured, and there is no evidence that they inspected the parking lot or the propertyas a whole during their visits. Consistent with O'Brien's testimony that the lease agreement madehim responsible for maintenance and repairs, defendant further testified that if she had evernoticed a dangerous condition on the property, she would have notified O'Brien, as he was "theperson in charge." Thus, no issues of fact were raised as to whether defendant, as an absenteeowner, retained possession or control of the premises or was contractually obligated to makerepairs, and Supreme Court properly granted summary judgment dismissing the complaintagainst her (see McComish v Luciano'sItalian Rest., 56 AD3d 534, 535 [2008]; Davison v Wiggand, 259 AD2d at 802;contrast Downey v R.W. Garraghan, Inc., 198 AD2d 570, 571-572 [1993]).
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Defendant's husband died whilethe matter was pending before Supreme Court.