| Mercer v Hellas Glass Works Corp. |
| 2011 NY Slip Op 06477 [87 AD3d 987] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Lucious Mercer, Plaintiff, v Hellas Glass Works Corp.,Defendant/Third-Party Plaintiff-Respondent. AVR-East Massapequa, LLC, Third-PartyDefendant-Appellant. |
—[*1] James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for defendant/third-partyplaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendant appeals froman order of the Supreme Court, Kings County (Schneier, J.), dated September 11, 2009, asamended by an order of the same court dated October 16, 2009, which denied its motion forsummary judgment dismissing the third-party complaint.
Ordered that the order dated September 11, 2009, as amended, is reversed, on the law, withcosts, and the third-party defendant's motion for summary judgment dismissing the third-partycomplaint is granted.
The plaintiff allegedly was injured while attempting to exit a retail store located in a buildingowned by the third-party defendant, AVR-East Massapequa, LLC (hereinafter AVR). Theplaintiff testified at his deposition that he was struck by glass when an outer vestibule door(hereinafter the door) was thrown open by wind and struck an adjacent door, causing glass in atransom window above the door to shatter. The plaintiff commenced this personal injury actionagainst Hellas Glass Works Corp. (hereinafter Hellas), alleging that his injuries had been causedby Hellas's negligent repair of the door approximately one week before his accident. Hellascommenced a third-party action against AVR, seeking indemnification and/or contribution. AVRmoved for summary judgment dismissing the third-party complaint. In opposition, Hellas arguedthat the transom window glass which had shattered was not safety glazing material (i.e., "safetyglass"), in violation of certain provisions of the General Business Law and the New York StateIndustrial Code, and that AVR's liability for the accident arose from its breach of the dutyimposed by those statutory provisions. The Supreme Court denied AVR's motion. We reverse.
An out-of-possession landlord's duty to repair a dangerous condition on leased premises isimposed by statute or regulation, by contract, or by a course of conduct (see Rivera v Nelson Realty, LLC, 7NY3d 530, 534 [2006]; Chapman v Silber, 97 NY2d 9, 19-20 [2001]; Juarez vWavecrest Mgt. Team, 88 NY2d 628, 642 [1996]; Ritto v Goldberg, 27 NY2d 887,889 [1970]; Alnashmi v Certified [*2]Analytical Group,Inc., — AD3d —, 2011 NY Slip Op 06465 [2011] [decided herewith]). Here, AVR made a prima facieshowing of its entitlement to judgment as a matter of law by demonstrating that its failure toinstall safety glass in the transom window above the door did not constitute a breach of any dutyimposed by statute or regulation, contract, or course of conduct (see generally Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). In opposition, Hellas failed to raise a triableissue of fact as to whether AVR's failure to install safety glass in the transom window violated aduty imposed by statute or regulation, the only source of duty alleged in its opposition papers(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The plainlanguage of the provisions of the General Business Law and the New York State Industrial Codecited by Hellas did not require the installation of safety glass in the transom window above thedoor (see General Business Law §§ 389-m, 389-o; 12 NYCRR 47.5[g]; 47.6, 47.11). Accordingly, the Supreme Court should have granted AVR's motion forsummary judgment dismissing the third-party complaint.
In light of the foregoing, we need not reach AVR's remaining contentions. Covello, J.P.,Angiolillo, Dickerson and Hall, JJ., concur.