Ferraro v. 270 Skip Lane, LLC

• Court: New York Supreme Court — Appellate Division
• Citation: Ferraro v. 270 Skip Lane, LLC, 177 A.D.3d 651, 109 N.Y.S.3d 891(Mem) (N.Y. App. Div. 2019)
• Decision Date: 06 November 2019
• Docket Number: Index No. 6387/15,2018–03206
• Parties: Ronald FERRARO, Appellant, v. 270 SKIP LANE, LLC, et al., Respondents.

177 A.D.3d 651

109 N.Y.S.3d 891 (Mem)

Ronald FERRARO, Appellant,

v.270 SKIP LANE, LLC, et al., Respondents.

2018–03206

Index No. 6387/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 30, 2019

November 6, 2019

Joseph B. Strassman, Rockville Centre, NY, for appellant.

Rawle & Henderson, LLP, New York, N.Y. (Derek E. Barrett of counsel), for respondents.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered January 3, 2018. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when his foot became caught in a pothole in a parking lot located on premises owned by the defendant 270 Skip Lane, LLC (hereinafter 270 Skip Lane), and leased to the plaintiff's employer. The plaintiff alleges that he was walking across the parking lot when his foot became caught in a pothole and his leg twisted, injuring his knee. The plaintiff commenced this action against 270 Skip Lane and its management company, the defendant JPD United, Inc., to recover damages for his injuries. The defendants moved for summary judgment dismissing the complaint, arguing that the defendant 270 Skip Lane was an out-of-possession landlord with no duty to repair the parking lot. The Supreme Court granted the defendants' motion, and the plaintiff appeals.

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a "duty imposed by statute or assumed by contract or a course of conduct" ( Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ; see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 858 N.E.2d 1127 ; Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51 ; Casson v. McConnell, 148 A.D.3d 863, 864, 49 N.Y.S.3d 711 ). The liability of an out-of-possession landlord must be based on the violation of a duty imposed by statute or assumed by contract or a course of conduct, "and not merely through its ‘control’ as that term is currently used" ( Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d at 18, 929 N.Y.S.2d 620 ; see Star v. Berridge, 77 N.Y.2d 899, 901, 568 N.Y.S.2d 904, 571 N.E.2d 74 ; People v. Scott, 26 N.Y.2d 286, 290, 309 N.Y.S.2d 919, 258 N.E.2d 206 ; Richer v. JQ II Assoc., LLC, 166 A.D.3d 692, 693, 88 N.Y.S.3d 190 ; cf. Gronski v. County of Monroe, 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ).

Here, the complaint sounds in common-law negligence and the pleadings do not allege the violation of a statute. The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that 270 Skip Lane was an out-of-possession landlord which did not assume a duty by contract or course of conduct to maintain the parking lot of the leased premises (see Fox v. Saloon, 166 A.D.3d 950, 951, 88 N.Y.S.3d 483 ; Richer v. JQ II Assoc., LLC, 166 A.D.3d at 694, 88 N.Y.S.3d 190 ; Fuzaylova v. 63–28 99th St. Farm Ltd., 161 A.D.3d 946, 946, 78 N.Y.S.3d 159 ; Castillo v. Wil–Cor Realty Co., Inc., 109 A.D.3d 863, 864, 972 N.Y.S.2d 578 ; Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d at 18, 929 N.Y.S.2d 620 ). In opposition, the...