| Villarreal v CJAM Assoc., LLC |
| 2015 NY Slip Op 00872 [125 AD3d 644] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Angela Villarreal, Appellant, v CJAMAssociates, LLC, Respondent. |
Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York,N.Y. [Michael H. Zhu and Brian J. Isaac], of counsel), for appellant.
Sobel Law Group, LLC, Huntington, N.Y. (Mark G. Vaughan of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Richmond County (McMahon, J.), dated July 18, 2013,which granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
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 Garcia v Town of BabylonIndus. Dev. Agency, 120 AD3d 546 [2014]; Wenzel v 16302 Jamaica Ave., LLC, 115 AD3d 852[2014]; Alnashmi v CertifiedAnalytical Group, Inc., 89 AD3d 10, 18 [2011]; Healy v Bartolomei, 87 AD3d1112, 1113 [2011]). Here, in support of its motion for summary judgmentdismissing the complaint, the defendant established, prima facie, that it was anout-of-possession landlord with no such duty, such that liability could not be imposedupon it by the plaintiff for her accident on the subject premises (see Garcia v Town ofBabylon Indus. Dev. Agency, 120 AD3d at 546; Alnashmi v Certified AnalyticalGroup, Inc., 89 AD3d at 18-19). In opposition, the plaintiff failed to raise a triableissue of fact as to whether the defendant retained control over the premises or had acontractual duty to maintain and repair the area of the premises where the accidentoccurred (see Garcia v Town of Babylon Indus. Dev. Agency, 120 AD3d at 546;Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 19). Furthermore, theplaintiff failed to raise a triable issue of fact that the metal grate through which she fellhad a structural or design defect in violation of a specific statutory provision, as a basisfor imposing liability upon the defendant (see Centeno v 575 E. 137th St. Real Estate, Inc., 111 AD3d531 [2013]; Bouima vDacomi, Inc., 36 AD3d 739 [2007]). As the defendant did not owe a duty to theplaintiff, we need not address the issue of whether it had notice of the alleged dangerouscondition (see Garcia v Town of Babylon Indus. Dev. Agency, 120 AD3d at 546;Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 19).
Therefore, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Chambers, J.P., Hall, Cohen and LaSalle, JJ.,concur.