| Poole v MCPJF, Inc. |
| 2015 NY Slip Op 03142 [127 AD3d 949] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Maria Poole, Respondent, v MCPJF, Inc.,Appellant, et al., Defendants. |
Albert W. Cornachio, P.C, Rye Brook, N.Y. (Albert W. Cornachio III of counsel),for appellant.
Bernstone & Grieco, LLP, New York, N.Y. (Matthew A. Schroeder of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant MCPJF, Inc.,appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated May 16,2013, which denied that branch of its motion which was for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant MCPJF, Inc., amongothers, alleging that she was injured when she slipped and fell on snow and ice on thesidewalk in front of premises owned by MCPJF, Inc. On its motion for summaryjudgment dismissing the complaint insofar as asserted against it, MCPJF, Inc., arguedthat it was an out-of-possession landlord which had not retained control over thepremises, and that the tenant at the premises had the duty to clear the sidewalk of snowand ice.
"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" (Villarreal v CJAM Assoc.,LLC, 125 AD3d 644, 645 [2015]; see Roman v Junius-Liberty Dev., LLC, 121 AD3d 774,775 [2014]; Garcia v Town ofBabylon Indus. Dev. Agency, 120 AD3d 546, 547 [2014]; Alnashmi v Certified AnalyticalGroup, Inc., 89 AD3d 10, 18 [2011]).
Here, the plaintiff did not allege that the landlord's duty was statutory or based on acourse of conduct. Thus, to prevail on its motion, MCPJF, Inc., was required todemonstrate, prima facie, that it had not retained control over the premises, or that it hadno contractual duty to remove snow and ice from the area where the plaintiff allegedlyslipped and fell. MCPJF, Inc., failed to sustain this burden because it failed to submit acopy of the lease between it and the entity that was the tenant of the subject premises atthe time of the accident (seeAzumally v 16 W. 19th LLC, 79 AD3d 922, 923 [2010]; Lalicata v 39-15 Skillman RealtyCo., LLC, 63 AD3d 889, 890 [2009]). Furthermore, MCPJF, Inc., could notsustain its prima facie burden by relying on evidence it submitted for the first [*2]time with its reply papers (see DiLapi v Saw Mill Riv.,LLC, 122 AD3d 896, 900 [2014]; Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 879[2013]; Damas v Valdes, 84AD3d 87, 96 [2011]; Migdol v City of New York, 291 AD2d 201 [2002]).In any event, the belated submissions did not cure the basic deficiency in its initialmoving papers.
The failure of MCPJF, Inc., to make a prima facie showing of its entitlement tojudgment as a matter of law required denial of its motion, regardless of the sufficiency ofthe plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
In light of our determination, we need not reach the parties' remaining contentions.Balkin, J.P., Hall, Roman and Cohen, JJ., concur.