| Moltisanti v Virgin Entertainment Group, Inc. |
| 2012 NY Slip Op 00499 [91 AD3d 838] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Peter Moltisanti, Plaintiff, v Virgin Entertainment Group,Inc., et al., Defendants, and Vornado 1540 Broadway, LLC,Appellant. |
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In an action to recover damages for personal injuries, the defendant Vornado 1540Broadway, LLC, appeals, as limited by its brief and a letter dated June 16, 2011, from so much ofan order of the Supreme Court, Kings County (Schneier, J.), dated October 1, 2010, as deniedthat branch of its motion which was for summary judgment dismissing the amended complaintinsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and that branch of the appellant's motion which was for summary judgmentdismissing the amended complaint insofar as asserted against it is granted.
Under New York common law, a landowner "has a duty to maintain his or her premises in areasonably safe condition" (Walsh vSuper Value, Inc., 76 AD3d 371, 375 [2010]; see Basso v Miller, 40 NY2d 233[1976]; see also Peralta v Henriquez, 100 NY2d 139, 143-144 [2003]), taking intoaccount all the circumstances, including the likelihood of injury to others, the seriousness of theinjury, and the burden of avoiding the risk (see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004];Peralta v Henriquez, 100 NY2d at 144; Tagle v Jakob, 97 NY2d 165, 168 [2001];Chapman v Silber, 97 NY2d 9, 19 [2001]; Kellman v 45 Tiemann Assoc., 87NY2d 871, 872 [1995]; Basso v Miller, 40 NY2d at 241). However, an out-of-possessionlandlord generally will not be responsible for injuries occurring on its premises unless thelandlord "has a duty imposed by statute or assumed by contract or a course of conduct" (Alnashmi v Certified Analytical Group,Inc., 89 AD3d 10, 18 [2011]; see Rivera v Nelson Realty, LLC, 7 NY3d 530, 534 [2006];Chapman v Silber, 97 NY2d at 19-20; Juarez v Wavecrest Mgt. Team, 88 NY2d 628,642 [1996]; Ritto v Goldberg, 27 NY2d 887, 889 [1970]; Healy v Bartolomei, 87 AD3d1112 [2011]; Mercer v Hellas GlassWorks Corp., 87 AD3d 987 [2011]).
The appellant's evidence submitted in support of that branch of its motion which was forsummary judgment dismissing the amended complaint insofar as asserted against it established,prima facie, that it was an out-of-possession landlord on the date of the subject accident, that thelease controlling on the date of the accident placed responsibility for repair of the leased premiseswhere the accident occurred squarely on the defendants Virgin Entertainment Group, Inc., VirginRealty, LLC, and Virgin Megastores (USA), L.P., and that those defendants, exclusively, were toperform maintenance and repair of the leased premises where the accident occurred. Therefore,the appellant met its initial burden of establishing that it owed no duty to the plaintiff (seeAlnashmi v [*2]Certified Analytical Group, Inc., 89 AD3d at18-19; Panico v Jiffy Lube Intl.,Inc., 86 AD3d 553 [2011]; Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 420[2011]). In opposition, no triable issue of fact was raised.
Accordingly, the Supreme Court should have granted that branch of the appellant's motionwhich was for summary judgment dismissing the amended complaint insofar as asserted againstit. Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.