| Goggins v Nidoj Realty Corp. |
| 2012 NY Slip Op 02081 [93 AD3d 757] |
| March 20, 2012 |
| Appellate Division, Second Department |
| Anthony Goggins, Appellant, v Nidoj Realty Corp.,Respondent, et al., Defendants. (And a Third-Party Action.) |
—[*1] Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel),for respondent. Steven G. Fauth, LLC, (Gannon, Lawrence & Rosenfarb, New York, N.Y. [Lisa L.Gokhulsingh], of counsel), for defendant Green Apple House, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), enteredDecember 2, 2010, as granted the motion of the defendant Nidoj Realty Corp. for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondentpayable by the appellant.
The plaintiff, an employee of the third-party defendant Mobay Restaurant, Inc. (hereinafterMobay), allegedly sustained injuries when he slipped and fell on the exterior basement stairs ofpremises leased to Mobay by the defendant Nidoj Realty Corp. (hereinafter Nidoj). According tothe plaintiff, the accident occurred when water suddenly gushed from an air conditioner drainagepipe attached to the adjoining premises, leased to the defendant Green Apple House, Inc.(hereinafter Green Apple).
"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, 14 [2011]). Nidoj established its prima facie entitlement to judgmentas a matter of law by establishing that it was an out-of-possession landlord that did not retaincontrol over the premises and was not contractually obligated to maintain or repair the basementstairs or the subject air conditioner (seeMoltisanti v Virgin Entertainment Group, Inc., 91 AD3d 838 [2012]; Alnashmi v Certified Analytical Group,Inc., 89 AD3d 10 [2011]; Sciammarella v Manorville Postal Assoc., 87 AD3d 530, 531[2011]), and that it owed no duty to the plaintiff by virtue of any statute upon which the plaintiffrelies (see 12 NYCRR ch I, subch A, part 16, Historical Note; Russin v Louis N.Picciano & Son, 54 NY2d 311, 316-317 [1981]; Elbadawi v Myrna & Mark Pizzeria,Inc., 70 [*2]AD3d 627, 628 [2010]; Robinson v M. Parisi & Son Constr. Co.,Inc., 51 AD3d 653 [2008]; Nikolaidis v La Terna Rest., 40 AD3d 827, 828 [2007]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alnashmi v CertifiedAnalytical Group, Inc., 89 AD3d at 19; Sciammarella v Manorville Postal Assoc., 87AD3d at 531; Salaices v Gar-BenAssoc., 82 AD3d 740, 742 [2011]). Accordingly, the Supreme Court properly grantedNidoj's motion for summary judgment dismissing the complaint insofar as asserted against it.
We decline Green Apple's invitation to search the record and to grant it summary judgmentdismissing the complaint insofar as asserted against it. Balkin, J.P., Eng, Hall and Sgroi, JJ.,concur.