Hart v. O'Brien

• Decision Date: 08 April 2010
• Citation: 898 N.Y.S.2d 697,72 A.D.3d 1257
• Parties: Thomas HART, Appellant, v. Thomas J. O'BRIEN, Individually and Doing Business as Albany Diamond Jewelers, et al., Defendants, and Mary E. Naughter, Respondent.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 697

72 A.D.3d 1257

Thomas HART, Appellant,

v. Thomas J. O'BRIEN, Individually and Doing Business as Albany Diamond Jewelers, et al., Defendants,andMary E. Naughter, Respondent.

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

April 8, 2010.

Pennock, Breedlove & Noll, L.L.P., Clifton Park (Sarah I. Goldman of counsel), for appellant.

Law Office of Joseph Buttridge, Albany (Joseph W. Buttridge of counsel), for respondent.

Before: CARDONA, P.J., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.

GARRY, J.

Appeal from an order of the Supreme Court (McDonough, J.), entered January 28, 2009 in Albany County, which granted defendant Mary E. Naughter's motion for summary judgment dismissing the complaint against her.

In October 2004, plaintiff was injured by a fall in a pothole as he was walking through a parking lot behind a commercial building in the Town of Guilderland, Albany County. The building was owned by defendant Mary E. Naughter (hereinafter defendant) and her husband. Defendant Thomas J. O'Brien operated an independent jewelry business in the building, which he had rented on a month-to-month basis under an oral lease since 2000. Plaintiff commenced this action against O'Brien and defendant.¹ After discovery was completed, defendant moved for summary judgment dismissing the complaint against her. Supreme Court granted the motion, and plaintiff now appeals.

Plaintiff contends that Supreme Court erred in determining that defendant, as an out-of-possession landlord, could not be held liable for plaintiff's injuries. With certain exceptions, " '[a]n out-of-possession landlord is generally not responsible for the maintenance or repair of leased premises; however, one who retains control of the premises or contracts to repair or maintain the property may be liable for defects' " ( Grady v. Hoffman, 63 A.D.3d 1266, 1268, 879 N.Y.S.2d 837 [2009], quoting Henness v. Lusins, 229 A.D.2d 873, 873-874, 645 N.Y.S.2d 937 [1996]; see Davison v. Wiggand, 259 A.D.2d 799, 800, 686 N.Y.S.2d 181 [1999], lv. denied 94 N.Y.2d 751, 700 N.Y.S.2d 425, 722 N.E.2d 505 [1999] ). O'Brien testified that he leased the property pursuant to an oral agreement he had reached with defendant's husbandby which, among other things, O'Brien would take responsibility for repairs and maintenance of the property. Accordingly, O'Brien testified that he shoveled walkways, raked, swept, and plowed the parking lot, maintained the lighting in the parking lot and, on one occasion, paid to have the lot resealed and the linesrepainted. Without obtaining permission from defendant or her husband, O'Brien replaced landscaping, repainted the building's interior and parts of its exterior, recarpeted the interior, and installed new showroom fixtures. O'Brien paid utility bills and property taxes, and defendant and her husband did not reimburse him for these expenditures or for his costs for maintenance or repairs. They had no keys to the building, maintained no office there, and were not involved in the operation of O'Brien's business ( contrast Stickles v. Fuller, 9 A.D.3d 599, 600-601, 780 N.Y.S.2d 649 [2004] ). This evidence was sufficient to meet defendant's prima facie burden to establish that the premises were leased without retaining possession or control, thus shifting the burden to plaintiff to establish the existence of questions of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; Del Giacco v. Noteworthy Co., 175 A.D.2d 516, 517, 572 N.Y.S.2d 784 [1991] ).

We agree with Supreme Court that plaintiff failed to establish the existence of issues of fact as to whether defendant and her husband "exercised any control over the land during the pertinent time, w[ere] contractually obligated to repair the premises, assumed responsibility by a course of conduct to maintain any portion of the premises, or created a dangerous condition" ( Del Giacco v. Noteworthy Co., 175 A.D.2d at 518, 572 N.Y.S.2d 784 [internal citations omitted] ). Neither the occasional visits made by defendant and her husband to the premises to pick up rent checks nor O'Brien's testimony that he would have consulted defendant before making major structural changes in the building were sufficient to establish such questions of fact. A landlord's retention of "the right...