Lugo v. Austin–Forest Assocs.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Lugo v. Austin–Forest Assocs., 99 A.D.3d 865, 952 N.Y.S.2d 603, 2012 N.Y. Slip Op. 6923 (N.Y. App. Div. 2012)
• Decision Date: 17 October 2012
• Parties: Gabriel LUGO, plaintiff-appellant, v. AUSTIN–FOREST ASSOCIATES, et al., defendants, Mowry Realty Associates, respondent, Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant, defendant-appellant.

99 A.D.3d 865

952 N.Y.S.2d 603

2012 N.Y. Slip Op. 06923

Gabriel LUGO, plaintiff-appellant,

v. AUSTIN–FOREST ASSOCIATES, et al., defendants,Mowry Realty Associates, respondent,Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant, defendant-appellant.

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

Oct. 17, 2012.

Annette G. Hasapidis, South Salem, N.Y., for plaintiff-appellant.

Nicoletti Gonson Spinner & Owen, LLP, New York, N.Y. (Edward L. Owen III, Elana Schachner, and Pauline E. Glaser of counsel), and Goldberg Segalla LLP, White Plains, N.Y. (William T. O'Connell of counsel), for defendant-appellant (one brief filed).

Perez & Varvaro, Uniondale, N.Y. (Edgar Matos of counsel), for respondent.

PETER B. SKELOS, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the defendant Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant, appeals from an order of the Supreme Court, Queens County (Sampson, J.), dated March 10, 2011, which granted the motion of the defendant Mowry Realty Associates for summary judgment dismissing the complaint and all cross claims insofar as asserted against that defendant and for conditional summary judgment on that defendant's cross claim for contractual indemnificationagainst it, and the plaintiff separately appeals, as limited by his brief, from so much of the same order as granted that branch of the motion of the defendant Mowry Realty Associates which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the appeal by the defendant Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant, from so much of the order as granted that branch of the motion of the defendant Mowry Realty Associates which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the defendant Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant, is not aggrieved by that portion of the order ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Mowry Realty Associates, payable by the plaintiff and the defendant Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant.

The plaintiff allegedly sustained injuries when he was struck by an open cellar door as he descended the stairs leading from the sidewalk to the cellar of a building owned by the defendant Mowry Realty Associates (hereinafter the defendant landlord) and leased to the defendant Pisco Restaurant Associates, LLC, doing business as Mardi Gras Restaurant (hereinafter the defendant tenant). The defendant landlord moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, contending that, as an out-of-possession landlord, it could not be held liable for the plaintiff's injuries. It further sought summary judgment on its cross claim against the defendant tenant for contractual indemnification. The defendant tenant and the plaintiff opposed the motion. The Supreme Court granted the motion.

“An out-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or by a course of conduct by the landlord giving rise to a duty” ( Repetto v. Alblan Realty Corp., 97 A.D.3d 735, 737, 948 N.Y.S.2d 655;Madry v. Heritage Holding Corp., 96 A.D.3d 1022, 947 N.Y.S.2d 588;Goggins v. Nidoj Realty Corp., 93 A.D.3d 757, 940 N.Y.S.2d 674;Seawright v. Port Auth. of N.Y. & N.J., 90 A.D.3d 1017, 937 N.Y.S.2d 234;Santos v. 786 Flatbush Food Corp., 89 A.D.3d 828, 829, 932 N.Y.S.2d 525;Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620;Mercer v. Hellas Glass Works Corp., 87 A.D.3d 987, 988, 930 N.Y.S.2d 18). Here, the defendant landlord established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession...