| Madry v Heritage Holding Corp. |
| 2012 NY Slip Op 05149 [96 AD3d 1022] |
| June 27, 2012 |
| Appellate Division, Second Department |
| John A. Madry, Appellant, v Heritage Holding Corp.,Respondent. (And a Third-Party Action.) |
—[*1] Cerussi & Spring, White Plains, N.Y. (Kevin P. Westerman and Jennifer L. Christiansen ofcounsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Dutchess County (Pagones, J.), dated June 24, 2010, which grantedthe defendant's motion for summary judgment dismissing the complaint and denied his crossmotion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thedefendant's motion for summary judgment dismissing the complaint and substituting therefor aprovision denying that motion; as so modified, the order is affirmed, without costs ordisbursements.
The plaintiff allegedly sustained injuries when he fell down a staircase in a retail florist shoplocated in a building owned by the defendant. The plaintiff commenced this action, inter alia, torecover damages for personal injuries based on both the common law and a violation of a statuteor regulation. The defendant moved for summary judgment dismissing the complaint, and theplaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court grantedthe defendant's motion and denied the plaintiff's cross motion. The plaintiff appeals, and wemodify.
"An out-of-possession landlord generally will not be responsible for injuries occurring on itspremises unless the landlord 'has a duty imposed by statute or assumed by contract or a course ofconduct' " (Healy v Bartolomei, 87AD3d 1112, 1113 [2011], quoting Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 18[2011]; see Goggins v Nidoj RealtyCorp., 93 AD3d 757 [2012]). Here, the defendant established its entitlement to summaryjudgment by demonstrating, prima facie, that it was an out-of-possession landlord, that the leaseplaced responsibility for the repair of the leased premises on the tenant, and that it did not violateany relevant statute or regulation (seeMercer v Hellas Glass Works Corp., 87 AD3d 987, 988 [2011]; see also Goggins v Nidoj Realty Corp.,93 AD3d 757 [2012]; Chapman vMCS Realty, LLC, 92 AD3d 913, 913-914 [2012]; Moltisanti v Virgin Entertainment Group, Inc., 91 AD3d 838,838-839 [2012]). In support of its motion, the defendant also established, prima facie, that theplaintiff could not identify the specific defect which allegedly caused his fall (see Bynum v Salter, 14 AD3d 582,583 [2005]).
In opposition, however, the evidence submitted by the plaintiff was sufficient to raise [*2]triable issues of fact to defeat the defendant's motion. The plaintiffsufficiently identified the specific defect which allegedly caused his fall. In addition, theplaintiff's expert's affidavit raised a triable issue of fact as to whether the alleged dangerousconditions constituted violations of former 12 NYCRR parts 16 and 26, which were in effectwhen the addition to the subject premises was made (see generally Plowden v Stevens Partners, LLC, 45 AD3d 659, 660[2007]; Dwyer v Diocese of RockvilleCtr., 45 AD3d 527 [2007]; Hyman v Queens County Bancorp, 307 AD2d 984,986 [2003], affd 3 NY3d 743 [2004]; Zangara v Swierszcz, 298 AD2d 889[2002]; Manning v Atlas Tr. Mix Corp., 254 AD2d 336, 336-337 [1998]). Thus, theplaintiff succeeded in raising a triable issue of fact as to whether the defendant violated a dutyimposed by statute or regulation. Contrary to the defendant's contention, the plaintiff's replyaffidavit did not constitute an attempt to create a feigned issue of fact as to causation, since it wasnot inconsistent with his deposition testimony on that issue (see Kievman v Philip, 84 AD3d 1031, 1033 [2011]; Carter v Grenadier Realty, 83 AD3d640, 641 [2011]).
Accordingly, the Supreme Court erred in granting the defendant's motion for summaryjudgment dismissing the complaint.
The Supreme Court properly denied the plaintiff's cross motion for summary judgment on theissue of liability. The plaintiff failed to eliminate all triable issues of fact as to whether, inter alia,the defendant created or had actual or constructive notice of the alleged dangerous conditions,and whether those alleged dangerous conditions proximately caused his injuries.
The parties' remaining contentions are without merit. Dillon, J.P., Angiolillo, Florio andDickerson, JJ., concur.