| Chapman v MCS Realty, LLC |
| 2012 NY Slip Op 01584 [92 AD3d 913] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Edward Chapman, Respondent, v MCS Realty, LLC,Appellant. |
—[*1] Baxter, Smith & Shapiro, P.C. (Joseph M. Guzzardo and Steven Bundschuh of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated February 17, 2011, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when he fell on an icy sidewalk at night after exiting abuilding owned by the defendant and leased to the plaintiff's employer, a retail furniture store.The plaintiff commenced this action against the defendant, alleging that it was negligent infailing to remove snow and ice from the sidewalk and in failing to provide adequate exteriorlighting. The defendant moved for summary judgment dismissing the complaint. The SupremeCourt denied the motion. The defendant appeals, and 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" (Mercer v Hellas Glass Works Corp., 87AD3d 987, 988 [2011]; see Riverav Nelson Realty, LLC, 7 NY3d 530, 534 [2006]; Chapman v Silber, 97 NY2d 9,19-20 [2001]; Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 642 [1996]; Alnashmi v Certified Analytical Group,Inc., 89 AD3d 10 [2011]). Here, the plaintiff does not premise liability on a violation ofa statute or regulation and, instead, bases his claim on the common law. The defendant made aprima facie showing of its entitlement to judgment as a matter of law by demonstrating that itwas an out-of-possession landlord, that the lease placed responsibility for maintenance of thesidewalk and exterior lighting on the tenant, and that it did not endeavor to perform suchmaintenance (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19;Mercer v Hellas Glass Works Corp., 87 AD3d at 987-988; Panico v Jiffy Lube Intl., Inc., 86 AD3d553 [2011]; McElroy vBernstein, 72 AD3d 757, 758 [2010]; Euvino v Loconti, 67 AD3d 629, 631 [2009]). In opposition, theplaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557 [1980]). Accordingly, the Supreme Court should have granted thedefendant's motion for summary judgment [*2]dismissing thecomplaint. Skelos, J.P., Dickerson, Belen and Miller, JJ., concur.