Dalzell v. McDonald's Corp.

• Decision Date: 23 October 1995
• Citation: 632 N.Y.S.2d 635,220 A.D.2d 638
• Parties: Karen DALZELL, Appellant, v. McDONALD'S CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 635

632 N.Y.S.2d 635

220 A.D.2d 638

Karen DALZELL, Appellant, v. McDONALD'S CORP., Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 23, 1995.

Breen, Medina, Mielo & Kirk, Farmingdale (Patrick S. Mielo, of counsel), for appellant.

Dowd & LaFauci, Syosset (James L. Dowd, of counsel), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, JOY and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (O'Brien, J.), dated January 28, 1994, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, an employee of W & K Management, Inc., the licensee and operator of a McDonald's restaurant in Farmingdale, New York, was sexually assaulted during the course of an armed robbery that occurred shortly after midnight on January 7, 1991. The premises are owned by the defendant and leased to the licensee, W & K Management. The plaintiff commenced the instant action alleging, inter alia, that the defendant's negligent failure to install and maintain a security system or to implement a security program was a cause of her injuries. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint finding, in essence, that the defendant, as an out-of-possession landlord, had no duty of care toward the plaintiff.

It is well settled that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises (see, Putnam v. Stout, 38 N.Y.2d 607, 381 N.Y.S.2d 848, 345 N.E.2d 319; Dufficy v. Wharf Bar & Grill, Inc., 217 A.D.2d 646, 629 N.Y.S.2d 808; Gelardo v. ASMA Realty Corp., 137 A.D.2d 787, 525 N.Y.S.2d 334).

Here, the lease and licensing agreements required W & K Management to maintain the premises and make all necessary repairs. The defendant's reservation of a right to enter and to inspect the premises is insufficient to impose liability on the defendant (see, Bettis v. County of Nassau, 212 A.D.2d 749, 623 N.Y.S.2d 294; Silver v. Brodsky, 112 A.D.2d 213, 490 N.Y.S.2d 865). Moreover, there was no evidence that the defendant had retained a sufficient degree of dominion and control over the leased premises to provide a basis for the imposition of liability (se...