| Notskas v Longwood Assoc., LLC |
| 2013 NY Slip Op 08061 [112 AD3d 599] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Patricia Notskas, Respondent, v LongwoodAssociates, LLC, et al., Appellants. |
—[*1] Gerard DeCapua, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Nassau County (Bruno, J.), dated September 5, 2012, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is granted.
The plaintiff allegedly sustained injuries when she was struck by an overhead soffitwhich fell from the ceiling at premises leased to the plaintiff's employer, which is not aparty to this action. The plaintiff's employer leased the premises from the defendants.After the plaintiff commenced this action, the defendants moved for summary judgmentdismissing the complaint, contending, inter alia, that, as out-of-possession landlords, theycould not be held liable for the plaintiff's injuries. The Supreme Court denied thedefendants' motion.
An out-of-possession landlord is not liable for injuries caused by dangerousconditions on leased premises in the absence of a statute or regulation imposing liability,a contractual provision placing the duty to repair on the landlord, or by a course ofconduct by the landlord giving rise to a duty (see Lugo v Austin-Forest Assoc., 99 AD3d 865, 866[2012]; Repetto v Alblan RealtyCorp., 97 AD3d 735, 737 [2012]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10,18 [2011]; Mercer v HellasGlass Works Corp., 87 AD3d 987, 988 [2011]). Here, the defendantsestablished their prima facie entitlement to judgment as a matter of law by demonstratingthat they were out-of-possession landlords, that they were not contractually obligated tomaintain the subject soffit, that they did not endeavor to maintain the soffit, and that theydid not owe the plaintiff a duty by virtue of any applicable statute or regulation (seeLugo v Austin-Forest Assoc., 99 AD3d at 866-867; Madry v Heritage HoldingCorp., 96 AD3d 1022, 1023 [2012]; Vialva v 40 W. 25th St. Assoc., L.P., 96 AD3d 735, 736[2012]). Contrary to the plaintiff's contention, "the failure to submit an affidavit by aperson with knowledge of the facts is not necessarily fatal to a motion" where, as here,the moving party submits other proof, such as deposition testimony with an attorney'saffirmation (Vetrano v [*2]J. Kokolakis Contr., Inc., 100 AD3d 984, 986[2012]; see Alvarez v Prospect Hosp., 68 NY2d at 325; Olan v FarrellLines, 64 NY2d 1092, 1093 [1985]; Maragos v Sakurai, 92 AD3d 922, 923 [2012]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]).
The defendants' remaining contentions need not be reached in light of the foregoing.
Accordingly, the Supreme Court should have granted the defendants' motion forsummary judgment dismissing the complaint. Rivera, J.P., Hall, Roman and Miller, JJ.,concur.