| Seawright v Port Auth. of N.Y. & N.J. |
| 2011 NY Slip Op 09617 [90 AD3d 1017] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Joseph L. Seawright, Respondent, v Port Authority of NewYork and New Jersey et al., Appellants. |
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Greenberg & Wolff, PLLC, Merrick, N.Y. (Adrianne S. Greenberg of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Port Authority of NewYork and New Jersey appeals, as limited by its brief, from so much of an order of the SupremeCourt, Queens County (Markey, J.), dated September 27, 2010, as denied that branch of itsmotion which was for summary judgment dismissing the complaint insofar as asserted against it,and the defendant La Guardia Airport also appeals from the same order.
Ordered that the appeal by the defendant La Guardia Airport is dismissed as abandoned(see 22 NYCRR 670.8 [c], [e]), and on the additional ground that it is not aggrieved bythe order appealed from (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant Port Authorityof New York and New Jersey, on the law, and that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant Port Authority of New York andNew Jersey payable by the plaintiff.
The plaintiff, who was employed by nonparty US Airways as a ramp agent, allegedly slippedand fell on snow and ice during the course of his employment on a US Airways ramp. USAirways leased its premises from the defendant Port Authority of New York and New Jersey(hereinafter the defendant). The lease provided that US Airways had exclusive possession andcontrol of the premises and was responsible for maintenance and repairs. The defendant retainedthe right to enter the premises and to make repairs at US Airways' expense in the event USAirways failed to fulfill its obligations.
Liability may be imposed on an out-of-possession landlord for injuries which occur on leasedpremises only where "an out-of-possession landlord has a duty imposed by statute or assumed bycontract or a course of conduct" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 18[2011]). Here, where the complaint sounds in common-law negligence and does not allege the[*2]violation of a statute, the defendant established, prima facie,that it was an out-of-possession landlord which had no duty to remove snow and ice from thesubject premises (see Santos v 786Flatbush Food Corp., 89 AD3d 828 [2011]; Thompson v Port Auth. of N.Y. &N.J., 305 AD2d 581 [2003]; D'Orlando v Port Auth. of NY & NJ, 250 AD2d 805[1998]; Stark v Port Auth. of N.Y. & N.J., 224 AD2d 681 [1996]). In opposition, theplaintiff failed to raise a triable issue of fact. Moreover, that branch of the defendant's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it was notpremature, since the plaintiff failed to demonstrate that additional discovery might lead torelevant evidence, or that facts essential to justify opposition to the motion were exclusivelywithin the knowledge and control of the defendant (see Martinez v Kreychmar, 84 AD3d 1037 [2011]; Davis v Rochdale Vil., Inc., 83 AD3d991 [2011]; Deleg v Vinci, 82AD3d 1146 [2011]; Rainford vSung S. Han, 18 AD3d 638 [2005]). "The mere hope or speculation that evidencesufficient to defeat a motion for summary judgment may be uncovered during the discoveryprocess is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]). Dillon, J.P.,Eng, Austin and Miller, JJ., concur.