| Healy v Bartolomei |
| 2011 NY Slip Op 06824 [87 AD3d 1112] |
| September 27, 2011 |
| Appellate Division, Second Department |
| John A. Healy et al., Respondents, v Mafalda Bartolomei etal., Appellants. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), forappellants Timothy Rozelle and Heidi Rozelle. Keith S. Rinaldi, P.C., Poughkeepsie, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant Mafalda Bartolomeiappeals, as limited by her brief, from so much of an order of the Supreme Court, DutchessCounty (Wood, J.), dated June 29, 2010, as denied her motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against her, and the defendants TimothyRozelle and Heidi Rozelle separately appeal, as limited by their brief, from so much of the sameorder as denied their cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs payable to the plaintiffs by thedefendants appearing separately and filing separate briefs.
The Supreme Court properly denied the motion of the defendant Mafalda Bartolomei forsummary judgment dismissing the complaint and all cross claims insofar as asserted against her,and the cross motion of the defendants Timothy Rozelle and Heidi Rozelle (hereinafter togetherthe Rozelles) for summary judgment dismissing the complaint and all cross claims insofar asasserted against them. An out-of-possession landlord generally will not be responsible forinjuries occurring on its premises unless the landlord "has a duty imposed by statute or assumedby contract or a course of conduct" (Alnashmi v Certified Analytical Group, Inc.,— AD3d —, —, 2011 NY Slip Op 06465, *5 [2011]). Here, Bartolomeifailed to establish, prima facie, that she was an out-of-possession landlord with no such duty,such that liability could not be imposed upon her. Moreover, Bartolomei and the Rozelles, thetenants living at the subject property, failed to establish, prima facie, on their motion and crossmotion, respectively, that they neither created nor had actual or constructive notice of the icycondition which allegedly caused the accident (see Gordon v American Museum of NaturalHistory, 67 NY2d 836 [1986]). Additionally, Bartolomei and the Rozelles failed to eliminateall triable issues of fact as to whether the lighting in the walkway where the accident occurredwas adequate [*2]and, if not, whether the lighting was aproximate cause of the accident (seeWarfield v Shan Assoc. of Syosset, LLC, 69 AD3d 708 [2010]; Gestetner v Teitelbaum, 52 AD3d778, 778 [2008]). Since Bartolomei and the Rozelles failed to meet their respective burdens,we need not address the sufficiency of the plaintiffs' opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851 [1985]). Dillon, J.P., Angiolillo, Dickerson and Cohen,JJ., concur.