Patterson v. H.E.H.

• Docket Number: 2020-07722,Index No. 52620/17
• Decision Date: 21 June 2023
• Citation: 2023 NY Slip Op 03358
• Parties: Michael Patterson, et al., appellants, v. H.E.H., LLC, respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03358

Michael Patterson, et al., appellants,
v.
H.E.H., LLC, respondent.

No. 2020-07722, Index No. 52620/17

Supreme Court of New York, Second Department

June 21, 2023

Steven M. Melley, PLLC, Rhinebeck, NY, for appellants.

Phelan, Phelan & Danek, LLP, Albany, NY (John J. Phelan of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated September 8, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Michael Patterson (hereinafter the injured plaintiff) allegedly was injured when he slipped and fell on ice in an exterior parking lot. The parking lot was owned by the defendant and leased by the injured plaintiff's employer. The injured plaintiff, and his wife suing derivatively, commenced this action against the defendant, inter alia, to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiffs appeal.

"'An owner or tenant in possession of [real property] owes a duty to maintain the property in a reasonably safe condition'" (Muller v City of New York, 185 A.D.3d 834, 835, quoting Boudreau-Grillo v Ramirez, 74 A.D.3d 1265, 1267; see Achee v Merrick Vil., Inc., 208 A.D.3d 542, 543-544). "However, an out-of-possession landlord is not liable for injuries caused by a dangerous condition on leased premises in the absence of a duty imposed by statute or assumed by contract or a course of conduct" (Achee v Merrick Vil., Inc., 208 A.D.3d at 543-544; see Sweeney v Hoey, 211 A.D.3d 1071, 1071-1072; Alnashmi v Certified Analytical Group, Inc., 89 A.D.3d 10, 18).

Here, the defendant demonstrated, prima facie, that it was an out-of-possession landlord that was not contractually obligated to remove snow and ice from the subject parking lot, that it did not assume such a duty through a course of conduct, and that it did not violate any relevant statute or regulation (see Sweeney v Hoey, 211 A.D.3d at 1072; Achee v Merrick Vil., Inc., 208 A.D.3d at 544; Keum Ok Han v Kemp, Pin & Ski, LLC, 142 A.D.3d 688, 689).

Contrary to the plaintiffs' contention, the defendant's...