Bracey v. 107-47 Sutphin, LLC

Opinion

Bracey v 107-47 Sutphin, LLC

2026 NY Slip Op 05003

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Darrell G. Bracey, appellant,

v

107-47 Sutphin, LLC, respondent, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2024-11740, (Index No. 706836/22)

Angela G. Iannacci, J.P.

William G. Ford

Lourdes M. Ventura

Susan Quirk, JJ.

Davidoff Law, P.C., Fresh Meadows, NY (Mark Peter Getzoni of counsel), for appellant.

The Gold Law Firm, P.C., Bellmore, NY (Karen C. Higgins and James Stewart of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered September 24, 2024. The order granted the motion of the defendant 107-47 Sutphin, LLC, for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On October 5, 2020, at approximately 2:00 a.m., the plaintiff was walking on a sidewalk abutting premises located at 107-47 Sutphin Boulevard in Queens, when he allegedly tripped and fell over sidewalk-level cellar doors that were open and in an upright position. At the time of the accident, the defendant 107-47 Sutphin, LLC (hereinafter the defendant), owned the mixed-use building located at that address, and the ground floor and basement were leased to 107 Mini Market Corp., doing business as HAS Deli.

The plaintiff commenced this action against the defendant, among others, to recover damages for personal injuries that he allegedly sustained when he tripped and fell. Subsequently, the defendant moved for summary judgment dismissing the complaint insofar as asserted against it. By order entered September 24, 2024, the Supreme Court granted the defendant's motion.

"Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition" (Yehia v Marphil Realty Corp., 130 AD3d 615, 616 [internal quotation marks omitted]; see Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5, 233 AD3d 814, 815). However, "[a]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct" (Mallet v City of New York, 184 AD3d 633, 633 [internal quotation marks omitted]; see Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5, 233 AD3d at 815; Sandoval v GWKMAR Assoc., LLC, 227 AD3d 923). "Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it" (Rodriguez v Sheridan One Co., LLC, 177 AD3d 801, 801 [*2][internal quotation marks omitted]; see Gordon v American Museum of Natural History, 67 NY2d 836, 837).

Here, by submitting a copy of its lease and a transcript of the deposition testimony and an affidavit of one of its owners, the defendant established, prima facie, that it was an out-of-possession landlord and was not bound by contract or course of conduct to maintain the cellar doors located in the sidewalk abutting its premises (see Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5, 233 AD3d at 815; Sandoval v GWKMAR Assoc., LLC, 227 AD3d at 924). Moreover, the defendant established, prima facie, that it did not retain sufficient control over the area or condition that allegedly caused the plaintiff's accident so as to subject it to liability or create or have notice of the allegedly dangerous condition (see Crosby v Southport, LLC, 169 AD3d 637, 639; see also Figueroa v Gueye, 66 AD3d 638, 639). Further, although the plaintiff alleged a violation of a statutory duty in his amended bill of particulars, and the defendant retained a right to reenter the premises for the purposes of emergencies, inspection, and repairs, the defendant established, prima facie, that the condition alleged was not a significant structural or design defect in violation of a specific statutory provision (see Kavenaght v 498 Seventh, LLC, 231 AD3d 720, 721; Behluli v 228 Hotel Corp., 172 AD3d 1151, 1152; Raffa v Verni, 139 AD3d 441). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court