Convale v. First 800ConeyIsland, LLC
Opinion
It appears you are using Adblock. Please disable Adblock to best experience our website.
Bureau Thomas J.K. Smith, State Reporter
Convale v First 800ConeyIsland, LLC
2026 NY Slip Op 04275
July 8, 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.
Anthony Convale, respondent,
v
First 800ConeyIsland, LLC, appellant, et al., defendants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2024-10373, (Index No. 518079/19)
Mark C. Dillon, J.P.
Lara J. Genovesi
Donna-Marie E. Golia
Phillip Hom, JJ.
Mintzer Sarowitz Zeris & Willis PLLC (Mauro Lilling Naparty LLP, Woodbury, NY [Glenn A. Kaminska], of counsel), for appellant.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant First 800ConeyIsland, LLC, appeals from an order of the Supreme Court, Kings County (Lisa S. Ottley, J.), dated July 23, 2024. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, without costs or disbursements.
On December 26, 2017, the plaintiff allegedly slipped and fell on an oil-like substance inside a premises owned by the defendant First 800ConeyIsland, LLC (hereinafter First 800), and occupied by the defendant Seven Hills Auto Center, Inc. (hereinafter Seven Hills). First 800 had purchased the premises in May 2017. The preexisting tenant, Seven Hills, refused to vacate the premises. On or about August 2, 2017, First 800 commenced a holdover proceeding against Seven Hills. Pursuant to a stipulation of settlement dated November 3, 2017, the Civil Court, Kings County, awarded a judgment of possession in favor of First 800 and issued a warrant of eviction and a stay of execution of the warrant through December 31, 2017.
In 2019, the plaintiff commenced this action against, among others, First 800 and Seven Hills. First 800 moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it was an out-of-possession landlord that had no duty to maintain the premises. In an order dated July 23, 2024, the Supreme Court denied the motion. The defendant appeals.
"[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" (Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5, 233 AD3d 814, 815 [internal quotation marks omitted]; see Mejia v 2959 Fulton St. Realty, Inc., 240 AD3d 881, 883). "Generally, when a tenant remains in possession after the expiration of a lease, 'pursuant to common law, there is implied a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument'" (Henderson v Gyrodyne Co. of Am., Inc., 123 AD3d 1091, 1093, quoting City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 300).
Here, First 800 failed to establish, prima facie, that it was an out-of-possession landlord that had no duty to maintain the premises. While First 800 established that it was an out-of-possession landlord, having purchased the property months prior to the accident, it failed to establish, prima facie, that it lacked a duty to maintain the premises (see O'Connell v Los Compadres Liquors & Wines, 211 AD3d 963, 964; Michalczuk v Resort Realty Assoc. Partnership, 131 AD3d 457, 457-458). By failing to submit a copy of the lease for Seven Hills's tenancy in support of its motion, First 800 failed to establish, prima facie, that it had no contractual obligation to maintain the premises during the holdover tenancy (see Miske v Selvaggi, 175 AD3d 1526, 1527). While the owner of First 800 provided an affidavit wherein he stated that First 800 did not have access to the interior of the premises during the pendency of the holdover proceeding, this affidavit was conclusory and unsupported by any record evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385; Beauvoir v Samuel, 204 AD3d 741, 742). Therefore, the evidence provided by First 800 was insufficient to establish that it, as landlord, had no duty to maintain the premises while the execution of the warrant of eviction was stayed. Since First 800 failed to meet its initial burden as the movant, the Supreme Court properly denied its motion for summary judgment dismissing the complaint insofar as asserted against it without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
DILLON, J.P., GENOVESI, GOLIA and HOM, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
Links to or from other sites do not signify endorsement or relationship with them.
Free access — add to your briefcase to read the full text and ask questions with AI
Convale v. First 800ConeyIsland, LLC (Convale v. First 800ConeyIsland, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.