| Smith v Northern Lights Land Co., LLC |
| 2011 NY Slip Op 00141 [80 AD3d 964] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Cady Smith, Appellant, v Northern Lights Land Company,LLC, Doing Business as Howard Johnson Inn & Suites, et al., Defendants, and LodgingUnlimited, Inc., Respondents. |
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Kavanagh, J. Appeal from that part of an order of the Supreme Court (Coccoma, J.), enteredAugust 24, 2009 in Otsego County, which, upon reargument, granted a motion by defendantLodging Unlimited, Inc. for summary judgment dismissing the complaint against it.
On February 26, 2006, plaintiff was sexually assaulted by a patron of the motel where sheworked as a clerk. She commenced this action against, among others, defendant Northern LightsLand Company, LLC, owner and operator of the motel, and defendant Lodging Unlimited, Inc., amanagement company that, prior to the assault, provided management services to the motel,alleging that each entity was negligent in failing to maintain the premises in a reasonably safecondition and, as a result, she was assaulted and injured. Northern Lights moved for summaryjudgment, arguing that it was plaintiff's employer and, since she was eligible for workers'compensation benefits at the time of the assault, her claim against it must be dismissed. LodgingUnlimited also moved for summary judgment, arguing that it was not liable because, when theassault occurred, it had severed its relationship with the motel and was no longer its [*2]managing agent. Initially, Supreme Court granted Northern Lights'motion and dismissed the complaint against it. At the same time, the court denied LodgingUnlimited's motion for summary judgment as moot. When plaintiff moved to reargue, the courtreinstated her claim against Northern Lights,[FN*]but dismissed plaintiff's complaint against Lodging Unlimited because it was not the managingagent of the motel at the time of plaintiff's assault and, therefore, was not legally responsible forher injuries. Plaintiff now appeals from that part of the order as granted Lodging Unlimited'smotion.
We affirm. Lodging Unlimited had ceased managing the motel when its contract withNorthern Lights ended in November 2005—some three months prior to the assault. "As ageneral rule, liability for dangerous conditions on land does not extend to a prior owner of thepremises. A narrow exception exists, however, and liability may be imposed where a dangerouscondition existed at the time of the conveyance and the new owner has not had a reasonable timeto discover the condition, if it was unknown, and to remedy the condition once it is known"(Bittrolff v Ho's Dev. Corp., 77 NY2d 896, 898 [1991] [citation omitted]; see Slominv Skaarland Constr. Corp., 207 AD2d 639, 641-642 [1994]; Young v Hanson, 179AD2d 978, 978-979 [1992]). While this exception has been found under certain circumstances toapply to a managing agent of a property (see Armstrong v Ogden Allied Facility Mgt.Corp., 281 AD2d 317, 318 [2001]), we find on the present circumstances that it does notapply here.
After Lodging Unlimited ended its association with the property, it appears that NorthernLights—as owner of the premises—assumed responsibility for managing the moteland was serving in that capacity on the date of plaintiff's assault. Since it owned the propertybefore, during and after Lodging Unlimited had managed the premises, Northern Lights, as notedby Supreme Court, had ample time to discover and address any dangerous condition that mayhave existed on the property prior to plaintiff's assault. Moreover, as owner, Northern Lights hada nondelegable duty to maintain the premises in a reasonably safe condition (see generally Gerbino v TinseltownUSA, 13 AD3d 1068, 1071-1072 [2004]) during the entire time it owned the property,and not simply after Lodging Unlimited ceased managing it. As such, we agree with SupremeCourt that Lodging Unlimited was entitled to summary judgment dismissing the claims against it.
Peters, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Supreme Court withhelddecision on Northern Lights' motion until the Workers' Compensation Board determined in thefirst instance whether workers' compensation benefits were plaintiff's sole remedy (see generally Matter of Smallwood vMereda Realty Corp., 75 AD3d 873 [2010]).