Keum Ok Han v. Kemp, Pin & Ski, LLC

• Decision Date: 31 August 2016
• Citation: 142 A.D.3d 688,2016 N.Y. Slip Op. 05908,36 N.Y.S.3d 883
• Parties: KEUM OK HAN, respondent, v. KEMP, PIN & SKI, LLC, appellant (and a third-party action).
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 688

36 N.Y.S.3d 883

2016 N.Y. Slip Op. 05908

KEUM OK HAN, respondent,

v. KEMP, PIN & SKI, LLC, appellant(and a third-party action).

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

Aug. 31, 2016.

Tromello, McDonnell & Kehoe, Melville, NY (Stephen J. Donnelly and James Kehoe of counsel), for appellant.

Mallilo & Grossman, Flushing, NY (Jessica Konrad of counsel), for respondent.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated June 26, 2015, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly was injured when she slipped and fell on ice in the parking lot outside her workplace. The premises were owned by the defendant and were leased to the plaintiff's employer. In seeking to recover damages from the defendant for those injuries, the plaintiff contends that the defendant breached a duty to remove snow and ice from the parking lot. The defendant moved for summary judgment dismissing the complaint on the ground that it was an out-of-possession landlord and had no duty to remove snow and ice. The Supreme Court denied the defendant's motion, and the defendant appeals.

Under New York common law, an out-of-possession landowner retains no general responsibility for keeping leased property in a reasonably safe condition (see Yaniveth R. v. LTD Realty Co., 27 N.Y.3d 186, 32 N.Y.S.3d 10, 51 N.E.3d 521

;

Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534–535, 825 N.Y.S.2d 422, 858 N.E.2d 1127

; Elsayed v. Al Farha Corp., 132 A.D.3d 942, 943, 20 N.Y.S.3d 80 ). The landowner may, however, be held responsible for injuries proximately caused by its breach of a duty imposed by statute or regulation (see

Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642, 649 N.Y.S.2d 115, 672 N.E.2d 135 ; cf.

Yaniveth R. v. LTD Realty Co., 27 N.Y.3d at 193–194, 32 N.Y.S.3d 10, 51 N.E.3d 521 ), accepted by contract (see

Hernandez v. Dunkin Brands Acquisition, Inc., 136 A.D.3d 980, 980, 25 N.Y.S.3d 355 ; cf.

DeMilo v. Weinberg Bros., LLC, 122 A.D.3d 895, 895–896, 998 N.Y.S.2d 97 ), or assumed through a course of conduct (see

Chapman v. Silber, 97 N.Y.2d 9, 21, 734 N.Y.S.2d 541, 760 N.E.2d 329 ; Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772 ; Milham v. Port Auth. of N.Y. & N.J., 117 A.D.3d 694, 694–695, 985 N.Y.S.2d 595 ).

Here, the plaintiff alleged that the defendant breached a common-law duty to keep the premises in a reasonably safe condition. The defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that it was an out-of-possession landlord and, thus, had no duty to perform repairs or remove snow and ice from the premises (see Duggan v. Cronos Enters., Inc., 133 A.D.3d 564, 564, 18 N.Y.S.3d 555

; Byrd v. Brooklyn 46 Realty, LLC, 129 A.D.3d 882, 883, 10 N.Y.S.3d 642 ; Khanimov v. McDonald's Corp., 121 A.D.3d 1050, 1051, 995 N.Y.S.2d 202 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had a duty to remove snow or ice under statute or regulation, the terms of the lease, or a course of conduct (see

Duggan v. Cronos Enters., Inc., 133 A.D.3d at 564, 18 N.Y.S.3d 555 ; Byrd v. Brooklyn 46 Realty, LLC, 129 A.D.3d at 883...