| Wenzel v 16302 Jamaica Ave., LLC |
| 2014 NY Slip Op 01744 [115 AD3d 852] |
| March 19, 2014 |
| Appellate Division, Second Department |
| Douglas Wenzel, Appellant, v 16302 JamaicaAvenue, LLC, Respondent, and Margherita Pizza NY Corp.,Defendant. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), forrespondent. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,N.Y. (Gregory A. Cascino of counsel), for defendant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his notice of appeal and brief, from so much of an order of the Supreme Court,Queens County (Nahman, J.), entered December 15, 2011, as granted that branch of themotion of the defendant 16302 Jamaica Avenue, LLC, which was for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs to thedefendant 16302 Jamaica Avenue, LLC.
The plaintiff allegedly sustained personal injuries when he caught his heel ondefective nosing, that is, the horizontally projecting edge of a stair tread, causing him tofall down basement stairs in premises leased by the defendant Margherita Pizza NYCorp. from the defendant 16302 Jamaica Avenue, LLC (hereinafter 16302 Jamaica),which did not remain in possession of the premises.
An out-of-possession landlord can be held liable for injuries that occur on itspremises only if the landlord has retained control over the premises and if the landlord iscontractually or statutorily obligated to repair or maintain the premises or has assumed aduty to repair or maintain the premises by virtue of a course of conduct (see Alnashmi v CertifiedAnalytical Group, Inc., 89 AD3d 10, 15 [2011]; see also Euvino v Loconti, 67AD3d 629, 631 [2009]; Robinson v M. Parisi & Son Constr. Co., Inc., 51 AD3d653 [2008]; Conte v FrelenAssoc., LLC, 51 AD3d 620 [2008]).
Here, 16302 Jamaica established its prima facie entitlement to judgment as a matterof law by demonstrating that it was an out-of-possession landlord, and was not obligatedto repair or maintain the premises (see He Shang Wang v 82-90 Broadway Realty Corp., 82 AD3d1158, 1159 [2011]; Robinson v M. Parisi & Son Constr. Co., Inc., 51 AD3dat 653; Kane v Port Auth. ofN.Y. & N.J., 49 AD3d 503, 504 [2008]; Couluris v Harbor Boat Realty, Inc., 31 AD3d 686, 687[2006]). Contrary to the plaintiff's contention, in opposition to the motion, he failed toraise a triable issue of fact as to [*2]whether 16302Jamaica violated a statutory provision obligating 16302 Jamaica to make repairs (see McElroy v Bernstein, 72AD3d 757, 758 [2010]; Robinson v M. Parisi & Son Constr. Co., Inc., 51AD3d at 653-654), since the statutory provision that the plaintiff's first supplemental billof particulars alleged was violated—Administrative Code of the City of New York§ 27-375—did not apply to the subject stairs (see Cusumano v City of NewYork, 15 NY3d 319, 324-325 [2010]; Maksuti v Best Italian Pizza, 27 AD3d 300, 300-301[2006]).
The plaintiff's contention that the Supreme Court should have granted his crossmotion for leave to supplement or amend his bill of particulars is not properly before thisCourt, as his notice of appeal expressly limited his appeal to the portion of the SupremeCourt's order granting that branch of 16302 Jamaica's motion which was for summaryjudgment dismissing the complaint insofar as asserted against it (see CPLR 5515[1]; Matter of Selena S.[Edward J.B.], 106 AD3d 1017 [2013]).
Although the plaintiff contends on appeal that 16302 Jamaica violated otherprovisions of the Administrative Code of the City of New York that imposed a statutoryduty upon it to make repairs or maintain the premises in a safe condition, the plaintiff, inresponse to 16302 Jamaica's demand for a bill of particulars, failed to identify theseprovisions either in his initial bill of particulars, his first supplemental bill of particulars,or his second supplemental bill of particulars. Thus, 16302 Jamaica was never placed onnotice during the course of discovery that the plaintiff would rely upon these additionalprovisions of the Administrative Code as a predicate for its liability. Under thesecircumstances, the Supreme Court did not improvidently exercise its discretion indeclining to allow the plaintiff to rely on those Administrative Code provisions inopposing 16302 Jamaica's motion for summary judgment (see generally Noller v Peralta,94 AD3d 833, 834 [2012]).
Accordingly, the Supreme Court properly granted that branch of 16302 Jamaica'smotion which was for summary judgment dismissing the complaint insofar as assertedagainst it.
Motion by the defendant Margherita Pizza NY Corp. on an appeal from an order ofthe Supreme Court, Queens County, entered December 15, 2011, inter alia, to strikepoint II of the appellant's brief on the ground that the appellant raised issues not properlybefore this Court. By decision and order on motion of this Court dated December 7,2012, that branch of the motion which was to strike point II of the appellant's brief washeld in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof. By decision and order onapplication dated February 27, 2013, the application of the defendant Margherita PizzaNY Corp. to withdraw its then-pending cross appeal from the order entered December15, 2011, was granted, and the cross appeal was deemed withdrawn.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the argument of the appeal, it is,
Ordered that the branch of the motion which was to strike point II of the [*3]appellant's brief is granted, and point II of the appellant'sbrief is deemed stricken and has not been considered in the determination of the appeal.Rivera, J.P., Lott, Sgroi and Miller, JJ., concur.