| Garcia v Town of Babylon Indus. Dev. Agency |
| 2014 NY Slip Op 05770 [120 AD3d 546] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Nimia Garcia, Respondent, v Town of BabylonIndustrial Development Agency et al., Defendants, and Creative Juices Printing &Graphics et al., Appellants. |
O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Dawn C.Faillace-Dillon and Eugene Morenus of counsel), for appellant Creative Juices Printing& Graphics.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y.(Kristin Blair Tyler and Anton Piotroski of counsel), for appellant Gazzilla Corp.
Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Paul B. Edelman ofcounsel), for respondent.
In a consolidated action to recover damages for personal injuries, etc., the defendantCreative Juices Printing & Graphics appeals, as limited by its brief, from so much ofan order of the Supreme Court, Suffolk County (Martin, J.), entered October 24, 2012, asdenied its motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against it, and the defendant Gazzilla Corp. separately appeals from somuch of the same order as denied that branch of its cross motion, made jointly with thedefendant Town of Babylon, which was for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one billsof costs, and the motion of the defendant Creative Juices Printing & Graphics forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it, and that branch of the cross motion of the defendant Gazzilla Corp. which wasfor summary judgment dismissing the complaint insofar as asserted against it aregranted.
The Supreme Court improperly denied that branch of the motion of the defendantGazzilla Corp, made jointly with the defendant Town of Babylon, which was forsummary judgment dismissing the complaint insofar as asserted against it. Anout-of-possession landlord generally will not be responsible for injuries occurring on itspremises unless the landlord has retained control over the premises, and if the landlordhas a duty imposed by statute or assumed by contract or a course of conduct (see Wenzel v 16302 Jamaica Ave.,LLC, 115 AD3d 852 [2014]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10,18 [2011]; Healy vBartolomei, 87 AD3d 1112, 1113 [2011]). Here, Gazzilla Corp. established,prima facie, that it was an out-of-possession landlord with no such duty, such thatliability could not be imposed upon it (see Chapman v MCS Realty, LLC, 92 AD3d 913 [2012];Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19; Travers v RCPI Landmark Props.,LLC, 74 AD3d 956, 957-958 [2010]). In opposition, the plaintiff failed to raisea triable issue of fact as to whether [*2]Gazzilla Corp.retained control over the premises or had a contractual duty to maintain and repair thepremises (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 19).Inasmuch as Gazzilla Corp. did not owe a duty to the plaintiff, we need notaddress the issue of whether it had notice of the alleged dangerous condition (seeid.).
The Supreme Court also improperly denied the motion of the defendant CreativeJuices Printing & Graphics (hereinafter Creative) for summary judgment dismissingthe complaint and all cross claims insofar as asserted against it. "Premises liability, aswith liability for negligence generally, begins with duty" (id. at 13), the extentand existence of which is a question of law (see id.; Espinal v Melville SnowContrs., 98 NY2d 136, 138 [2002]). Generally, "liability for a dangerous or defectivecondition on real property must be predicated upon ownership, occupancy, control, orspecial use of that property" (Suero-Sosa v Cardona, 112 AD3d 706, 707 [2013]; Sanchez v 1710 Broadway,Inc., 79 AD3d 845, 846 [2010]). Where none of those factors exist, a partycannot be held liable for injuries caused by the allegedly defective condition (seeSanchez v 1710 Broadway, Inc., 79 AD3d at 846).
Here, Creative established that it was another tenant of the premises and did not own,occupy, or control the area where the plaintiff's accident allegedly occurred. Therefore, itestablished, prima face, that it did not owe the plaintiff a duty of care (Suero-Sosa v Cardona, 112AD3d 706 [2013]; Alami v215 E. 68th St., L.P., 88 AD3d 924 [2011]). In opposition, the plaintiff failed toraise an issue of fact.
Therefore, the Supreme Court should have granted Creative's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, andthat branch of Gazzilla Corp.'s cross motion which was for summary judgmentdismissing the complaint insofar as asserted against it. Rivera, J.P., Balkin, Dickersonand Cohen, JJ., concur. [Prior Case History: 2012 NY Slip Op 32687(U).]