| Panico v Jiffy Lube Intl., Inc. |
| 2011 NY Slip Op 05951 [86 AD3d 553] |
| July 12, 2011 |
| Appellate Division, Second Department |
| Dennis Panico, Appellant, v Jiffy Lube International, Inc.,Defendant, and Real Estate Oil Change Limited Partnership et al.,Respondents. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Thomas M. Martyn of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), enteredOctober 13, 2010, which granted the motion of the defendants Real Estate Oil Change LimitedPartnership, and Real Estate Oil Change, LLC, for leave to reargue their motion for summaryjudgment dismissing the complaint insofar as asserted against them, which had been denied in anorder of the same court entered April 16, 2010, and upon reargument, vacated so much of thedetermination in the order entered April 16, 2010, as denied the motion for summary judgment,and thereupon granted the motion for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order entered October 13, 2010, is affirmed insofar as appealed from, withcosts.
The defendants Real Estate Oil Change Limited Partnership, and Real Estate Oil Change,LLC (hereinafter together the defendants), established their prima facie entitlement to judgmentas a matter of law by establishing that they were out-of-possession landlords who did not retaincontrol over the premises and were not contractually obligated to maintain or repair the premises(see McElroy v Bernstein, 72 AD3d757, 758 [2010]; Kane v Port Auth.of N.Y. & N.J., 49 AD3d 503, 503-504 [2008]; Shrenkel v New York StateDormitory Auth., 266 AD2d 369 [1999]). The defendants further established, prima facie,that they did not create the allegedly dangerous conditions that caused the plaintiff's injuries, norlease the premises knowing that dangerous conditions existed on the premises (see McElroy vBernstein, 72 AD3d at 758; Lomedico v Cassillo, 56 AD3d 1271, 1271 [2008]). In opposition,the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
Accordingly, upon reargument, the Supreme Court properly granted the defendants' motionfor summary judgment dismissing the complaint insofar as asserted against them. Covello, J.P.,Eng, Chambers and Miller, JJ., concur.