| Lugo v Austin-Forest Assoc. |
| 2012 NY Slip Op 06923 [99 AD3d 865] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Gabriel Lugo, Appellant, v Austin-Forest Associates et al.,Defendants, Mowry Realty Associates, Respondent, and Pisco Restaurant Associates, LLC,Doing Business as Mardi Gras Restaurant, Appellant. |
—[*1] Nicoletti Gonson Spinner & Owen, LLP, New York, N.Y. (Edward L. Owen III, ElanaSchachner, and Pauline E. Glaser of counsel), and Goldberg Segalla LLP, White Plains, N.Y.(William T. O'Connell of counsel), for defendant-appellant (one brief filed). Perez & Varvaro, Uniondale, N.Y. (Edgar Matos of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Pisco RestaurantAssociates, LLC, doing business as Mardi Gras Restaurant, appeals from an order of theSupreme Court, Queens County (Sampson, J.), dated March 10, 2011, which granted the motionof the defendant Mowry Realty Associates for summary judgment dismissing the complaint andall cross claims insofar as asserted against that defendant and for conditional summary judgmenton that defendant's cross claim for contractual indemnification against it, and the plaintiffseparately appeals, as limited by his brief, from so much of the same order as granted that branchof the motion of the defendant Mowry Realty Associates which was for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the appeal by the defendant Pisco Restaurant Associates, LLC, doing businessas Mardi Gras Restaurant, from so much of the order as granted that branch of the motion of thedefendant Mowry Realty Associates which was for summary judgment dismissing the complaintinsofar as asserted against it is dismissed, as the defendant Pisco Restaurant Associates, LLC,doing business as Mardi Gras Restaurant, is not aggrieved by that portion of the order(see CPLR 5511; Mixon v TBV,Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant Mowry Realty Associates, payableby the plaintiff and the defendant Pisco Restaurant Associates, LLC, doing business as MardiGras Restaurant.
The plaintiff allegedly sustained injuries when he was struck by an open cellar door as hedescended the stairs leading from the sidewalk to the cellar of a building owned by the [*2]defendant Mowry Realty Associates (hereinafter the defendantlandlord) and leased to the defendant Pisco Restaurant Associates, LLC, doing business as MardiGras Restaurant (hereinafter the defendant tenant). The defendant landlord moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, contendingthat, as an out-of-possession landlord, it could not be held liable for the plaintiff's injuries. Itfurther sought summary judgment on its cross claim against the defendant tenant for contractualindemnification. The defendant tenant and the plaintiff opposed the motion. The Supreme Courtgranted the motion.
"An out-of-possession landlord is not liable for injuries caused by dangerous conditions onleased premises in the absence of a statute imposing liability, a contractual provision placing theduty to repair on the landlord, or by a course of conduct by the landlord giving rise to a duty" (Repetto v Alblan Realty Corp., 97AD3d 735, 737 [2012]; Madry vHeritage Holding Corp., 96 AD3d 1022 [2012]; Goggins v Nidoj Realty Corp., 93 AD3d 757 [2012]; Seawright v Port Auth. of N.Y. & N.J.,90 AD3d 1017 [2011]; Santos v786 Flatbush Food Corp., 89 AD3d 828, 829 [2011]; Alnashmi v Certified Analytical Group,Inc., 89 AD3d 10, 18 [2011]; Mercer v Hellas Glass Works Corp., 87 AD3d 987, 988 [2011]).Here, the defendant landlord established its prima facie entitlement to judgment as a matter oflaw by demonstrating that it was an out-of-possession landlord, that it was not contractuallyobligated to maintain the subject cellar doors, that it did not endeavor to maintain the cellardoors, and that it did not owe the plaintiff a duty by virtue of any statute upon which the plaintiffrelied before the Supreme Court (see Madry v Heritage Holding Corp., 96 AD3d at 1023;Vialva v 40 W. 25th St. Assoc.,L.P., 96 AD3d 735 [2012]; Goggins v Nidoj Realty Corp., 93 AD3d at 758;Mercer v Hellas Glass Works Corp., 87 AD3d at 988).
In opposition to the defendant landlord's prima facie showing, the plaintiff and the defendanttenant failed to raise a triable issue of fact (see generally Zuckerman v City of New York,49 NY2d 557, 562 [1980]). We note that the defendant tenant's argument that the defendantlandlord violated Administrative Code of the City of New York § 19-119 is improperlyraised for the first time on appeal, and therefore is not properly before this Court (see Doviak v Finkelstein & Partners,LLP, 90 AD3d 696 [2011]; Whitehead v City of New York, 79 AD3d 858 [2010]).
Further, the Supreme Court properly granted that branch of the defendant landlord's motionwhich was for conditional summary judgment on its cross claim for contractual indemnificationagainst the defendant tenant. The defendant landlord established its prima facie entitlement tojudgment as a matter of law on this cross claim by demonstrating that it was entitled tocontractual indemnification pursuant to section 64 of the lease between it and the defendanttenant and, in opposition, the defendant tenant failed to raise a triable issue of fact (seegenerally Zuckerman v City of New York, 49 NY2d at 562).
The remaining contentions of the plaintiff and the defendant tenant are without merit. Skelos,J.P., Florio, Belen and Sgroi, JJ., concur.