| He Shang Wang v 82-90 Broadway Realty Corp. |
| 2011 NY Slip Op 02626 [82 AD3d 1158] |
| March 29, 2011 |
| Appellate Division, Second Department |
| He Shang Wang et al., Respondents, v 82-90 BroadwayRealty Corporation, Appellant. (And a Third-Party Action.) |
—[*1] Rimland & Associates, New York, N.Y. (Anthony M. Grisanti of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby its brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.),dated May 10, 2010, as denied those branches of its motion which were for summary judgmentdismissing the complaint, or to strike the plaintiffs' bill of particulars to the extent that it referredto loss of earnings.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was for summary judgment dismissing the complaint isgranted, and that branch of the defendant's motion which was to strike the plaintiffs' bill ofparticulars to the extent that it referred to loss of earnings is denied as academic.
The plaintiff He Shang Wang (hereinafter the injured plaintiff), an employee of New YorkSupermarket, Inc. (hereinafter the supermarket), alleged that he was injured when he fell down astairway at his place of employment. The supermarket leased the premises from the defendant,82-90 Broadway Realty Corporation. Following discovery, the defendant moved, inter alia, forsummary judgment dismissing the complaint. In the order appealed from, the Supreme Court,among other things, denied the motion, finding that the defendant failed to establish its primafacie entitlement to judgment as a matter of law. We reverse the order insofar as appealed from.
The defendant established its prima facie entitlement to judgment as a matter of law bysubmitting its lease with the supermarket and an affidavit of the defendant's vice-president, bothof which demonstrated that it was an out-of-possession landlord that did not retain control overthe premises and was not obligated under the terms of the lease to perform repairs ormaintenance (see Kane v Port Auth. of N.Y. & N.J., 49 AD3d 503, 504 [2008]; seealso Euvino v Loconti, 67 AD3d 629, 631 [2009]; Felder v Wank, 227 AD2d 442[1996]; cf. Melendez v American Airlines, 290 AD2d 241, 242 [2002]; Mikolajczykv Morgan Contrs., 273 AD2d 864, 864 [2000]). Moreover, the defendant made a prima facieshowing of entitlement to judgment as a matter of law by submitting the injured plaintiff'sdeposition [*2]testimony, which demonstrated that he was unableto identify any defect which caused him to fall (see Reiff v Beechwood Browns Rd. Bldg.Corp., 54 AD3d 1015, 1015 [2008]; Curran v Esposito, 308 AD2d 428, 429 [2003];see also Rodriguez v Cafaro, 17 AD3d 658, 658 [2005]; Tresgallo v Danica, 286AD2d 326 [2001]).
In opposition, the plaintiffs raised a triable issue of fact as to whether the landlord retainedcontrol over the premises and, thus, could be held liable for injuries caused by a defectivecondition that was created by the defendant or of which it had actual or constructive notice(see Nelson v Cunningham Assoc., L.P., 77 AD3d 638, 639 [2010]). The plaintiffs,however, failed to show what defect, if any, caused the accident. Accordingly, that branch of thedefendant's motion which was for summary judgment dismissing the complaint should have beengranted (see Reiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d at 1015; Pluhar vTown of Southampton, 29 AD3d 975, 975 [2006]; Rodriguez v Cafaro, 17 AD3d at658).
The parties' remaining contentions have been rendered academic by our determination or arewithout merit. Covello, J.P., Belen, Hall and Cohen, JJ., concur.