Salaices v. Gar-Ben Associates

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: Salaices v. Gar-Ben Associates, 918 N.Y.S.2d 510, 82 A.D.3d 740 (N.Y. App. Div. 2011)
• Decision Date: 01 March 2011
• Parties: Alice SALAICES, plaintiff-respondent, v. GAR-BEN ASSOCIATES, appellant, Sherman Vincent Associates, Inc., et al., defendants-respondents (and a third-party action).

918 N.Y.S.2d 510

82 A.D.3d 740

Alice SALAICES, plaintiff-respondent,

v. GAR-BEN ASSOCIATES, appellant,Sherman Vincent Associates, Inc., et al., defendants-respondents(and a third-party action).

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

March 1, 2011.

Loccisano & Larkin (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Matthew W. Naparty, Richard J. Montes, and Jennifer Ettenger], of counsel), for appellant.

Brecher Fishman Pasternack Walsh Tilker & Ziegler, P.C., New York, N.Y. (Diamond and Diamond, LLC [Stuart Diamond], of counsel), for plaintiff-respondent.

PETER B. SKELOS, J.P., RANDALL T. ENG, ARIEL E. BELEN, L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, the defendant Gar-Ben Associates appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated May 6, 2009, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the plaintiff-respondent and defendants-respondents, and the motion of the defendant Gar-Ban Associates for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The plaintiff allegedly was injured when she fell after stepping into an electrical outlet box located in the floor of a furniture store. The box, measuring approximately six inches by four inches, and a few inches deep, was supposed to be covered with a metal plate, but was not covered at the time of the accident.

The plaintiff commenced this action against, inter alia, Gar-Ben Associates (hereinafter Gar-Ben), the owner of the premises. Gar-Ben moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the Supreme Court denied the motion.

An out-of-possession landlord may not be held liable for injuries occurring on its premises unless it is contractually obligated to perform maintenance andrepairs or it has retained control over the premises ( see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566-567, 516 N.Y.S.2d 451, 509 N.E.2d 51; Worth Distribs. v. Latham, 59 N.Y.2d 231, 238, 464 N.Y.S.2d 435, 451 N.E.2d 193; Putnam v. Stout, 38 N.Y.2d 607, 613-618, 381 N.Y.S.2d 848, 345 N.E.2d 319; Taylor v. Lastres, 45 A.D.3d 835, 847 N.Y.S.2d 139; Roveto v. VHT Enters., Inc., 17 A.D.3d 341, 791 N.Y.S.2d 843; Manning v. New York Tel. Co., 157 A.D.2d 264, 266-269, 555 N.Y.S.2d 720). Here, while Gar-Ben was obligated by the terms of its lease with the building's tenant to make structural repairs, it made a prima facie showing that the...