| Vialva v 40 W. 25th St. Assoc., L.P. |
| 2012 NY Slip Op 04332 [96 AD3d 735] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Kevin R. Vialva et al., Appellants, v 40 West 25th StreetAssociates, L.P., et al., Respondents, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Debra J. Millman, New York, N.Y. (Steven P. Germansky of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Queens County (Golia, J.), dated January 14, 2011, which grantedthe motion of the defendants 40 West 25th Street Associates, L.P., GVA Williams Real Estate,Inc., and Williams Real Estate Co., Inc., for summary judgment dismissing the amendedcomplaint insofar as asserted against them, and (2) a judgment of the same court entered June 16,2011, which, upon the order dated January 14, 2011, is in favor of the defendants 40 West 25thStreet Associates, L.P., GVA Williams Real Estate, Inc., and Williams Real Estate Co., Inc., andagainst them, dismissing the amended complaint insofar as asserted against those defendants.
Ordered that the appeal from the order dated January 14, 2011, is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants 40 West 25th Street Associates,L.P., GVA Williams Real Estate, Inc., and Williams Real Estate Co., Inc.
The appeal from the intermediate order dated January 14, 2011, must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order datedJanuary 14, 2011, are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
The injured plaintiff, Kevin R. Vialva, was employed by the third-party defendant A.B.Import-Export Company, Inc., which operated a store in premises leased from the propertyowner, the defendant 40 West 25th Street Associates, L.P. (hereinafter the owner). On February18, 2007, the injured plaintiff allegedly sustained injuries when the street vault elevator on whichhe was [*2]riding suddenly dropped from the street level to thebasement of the premises. The injured plaintiff, and his wife, suing derivatively, commenced thisaction to recover damages, inter alia, for personal injuries. The owner and its managing agents,the defendants GVA Williams Real Estate, Inc., and Williams Real Estate Co., Inc. (hereinaftercollectively the respondents), moved for summary judgment dismissing the amended complaintinsofar as asserted against them. The Supreme Court granted the motion. The plaintiffs appeal,and we affirm.
" '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' " (Goggins v Nidoj Realty Corp., 93AD3d 757, 758 [2012], quoting Mercer v Hellas Glass Works Corp., 87 AD3d 987, 988 [2011]; see Rivera v Nelson Realty, LLC, 7NY3d 530, 534 [2006]; Chapman vMCS Realty, LLC, 92 AD3d 913, 913 [2012]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 14[2011]). Here, the respondents established their prima facie entitlement to judgment as a matterof law by establishing that the owner was an out-of-possession landlord, that the respondentswere not contractually obligated to maintain the demised premises, including the appurtenancethereto, that the respondents did not endeavor to perform such maintenance, and that therespondents owed no duty to the injured plaintiff by virtue of any statute upon which theplaintiffs rely (see Goggins v NidojRealty Corp., 93 AD3d 757 [2012]; Chapman v MCS Realty, LLC, 92 AD3d at913-914; Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19; Mercer vHellas Glass Works Corp., 87 AD3d at 987-988; see also Elbadawi v Myrna & Mark Pizzeria, Inc., 70 AD3d 627,628 [2010]; Robinson v M. Parisi & SonConstr. Co., Inc., 51 AD3d 653 [2008]; Nikolaidis v La Terna Rest., 40 AD3d 827, 828 [2007]). Inopposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v Cityof New York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court properly granted therespondents' motion for summary judgment dismissing the amended complaint insofar asasserted against them. Dillon, J.P., Dickerson, Hall and Sgroi, JJ., concur.