| Gronski v County of Monroe |
| 2010 NY Slip Op 03985 [73 AD3d 1439] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| John Gronski et al., Appellants, v County of Monroe,Respondent. |
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Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.),entered March 20, 2009 in a personal injury action. The order granted the motion of defendantfor summary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries allegedly sustained by John Gronski (plaintiff) when he was struckby a corrugated bale of recycling material, weighing almost one ton, while working at arecycling facility owned but not operated by defendant. Pursuant to an Operations andMaintenance Agreement (Agreement), defendant assigned operational control over the facility toplaintiff's employer, Metro Waste Paper Recovery U.S., Inc. (Metro).
We conclude that Supreme Court properly granted defendant's motion for summaryjudgment dismissing the complaint. Pursuant to the Agreement, defendant delegated allresponsibility for operation and maintenance of the facility to Metro, including responsibility forsafety measures. Contrary to plaintiffs' contention, the court properly analogized this case tothose cases involving out-of-possession landlords (see e.g. Ferro v Burton, 45 AD3d 1454 [2007]; Regensdorfer vCentral Buffalo Project Corp., 247 AD2d 931, 932 [1998]). " 'It is well settled that anout-of-possession landlord who relinquishes control of the premises and is not contractuallyobligated to repair unsafe conditions is not liable to employees of a lessee for personal injuriescaused by an unsafe condition existing on the premises' " (Regensdorfer, 247 AD2d at932). Defendant met its initial burden of establishing that it "did not exercise control over thesubject [facility] or assume any contractual responsibility to maintain and repair it. Rather,[Metro] was contractually obligated . . . to repair and maintain" the facility(Thompson v Port Auth. of N.Y. & N.J., 305 AD2d 581, 582 [2003]). Plaintiff failed toraise a triable issue of fact sufficient to defeat the motion (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
Inasmuch as defendant did not retain operational control over the facility, we reject [*2]plaintiffs' further contention that defendant, as the landowner, oweda nondelegable duty to provide for plaintiff's safety (cf. Bart v Universal Pictures, 277AD2d 4, 5 [2000]). We further conclude that the Department of Environmental Conservationpermit obtained for the facility did not impose upon defendant any such nondelegable duty.Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.