| Salaices v Gar-Ben Assoc. |
| 2011 NY Slip Op 01641 [82 AD3d 740] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Alice Salaices, Respondent, v Gar-Ben Associates,Appellant, and Sherman Vincent Associates, Inc., et al., Respondents. (And a Third-PartyAction.) |
—[*1] Brecher Fishman Pasternack Walsh Tilker & Ziegler, P.C., New York, N.Y. (Diamond andDiamond, LLC [Stuart Diamond], of counsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Gar-Ben Associatesappeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated May 6, 2009,which denied its motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs payable by theplaintiff-respondent and defendants-respondents, and the motion of the defendant Gar-BanAssociates for summary judgment dismissing the complaint and all cross claims insofar asasserted against it is granted.
The plaintiff allegedly was injured when she fell after stepping into an electrical outlet boxlocated in the floor of a furniture store. The box, measuring approximately six inches by fourinches, and a few inches deep, was supposed to be covered with a metal plate, but was notcovered at the time of the accident.
The plaintiff commenced this action against, inter alia, Gar-Ben Associates (hereinafterGar-Ben), the owner of the premises. Gar-Ben moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, and the Supreme Court denied themotion.
An out-of-possession landlord may not be held liable for injuries occurring on its premisesunless it is contractually obligated to perform maintenance and repairs or it has retained controlover the premises (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559,566-567 [1987]; Worth Distribs. v Latham, 59 NY2d 231, 238 [1983]; Putnam vStout, 38 NY2d 607, 613-618 [1976]; Taylor v Lastres, 45 AD3d 835 [2007]; Roveto v VHT Enters., Inc., 17 AD3d341 [2005]; Manning v New York Tel. Co., 157 AD2d 264, 266-269 [1990]). Here,while Gar-Ben was obligated by the terms of its lease with the building's tenant to makestructural repairs, it made a prima facie showing that the placement of a proper cover on theoutlet box did not constitute a structural repair within the meaning of the relevant leaseprovision. Moreover, although [*2]Gar-Ben retained a right toreenter the premises for purposes of inspection and repair, it nonetheless made a prima facieshowing that the uncovered outlet box was not a structural or design defect and did not violate aspecific (and pertinent) statutory provision, and that Gar-Ben did not otherwise have constructivenotice of the allegedly hazardous condition (see Reddy v 369 Lexington Ave. Co., L.P., 31 AD3d 732, 733[2006]; Curiale v Sharrotts Woods,Inc., 9 AD3d 473 [2004]; Hernandez v Seven Fried Food, 292 AD2d 343[2002]; Beck v Woodward Affiliates, 226 AD2d 328, 330 [1996]; Manning v NewYork Tel. Co., 157 AD2d at 269-270). In opposition to these showings by Gar-Ben, theplaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are improperly raised for the first time on appeal.
Accordingly, the Supreme Court erred in denying Gar-Ben's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it. Skelos, J.P., Eng,Belen and Hall, JJ., concur.