Mangual v. U.S.A. Realty Corp.

63 A.D.3d 493, 880 N.Y.S.2d 637

Opinion

Order, Supreme Court, Bronx County (Paul Victor, J.), entered November 13, 2008, which, insofar as appealed from in this action for personal injuries sustained while exiting a building owned by defendant U.S.A. Realty Corp., denied defendant Banarsee’s motion for partial summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Banarsee dismissing the complaint as against her.

The motion court erred in finding that an issue of fact existed concerning Banarsee’s status as managing agent of the building. Regardless of whether Banarsee was acting as an officer of the corporate defendant or managing agent thereof, liability cannot be imposed absent a showing that Banarsee had exclusive control of the premises (see Hakim v 65 Eighth Ave., LLC, 42 AD3d 374, 375 [2007]; Mendez v City of New York, 259 AD2d 441, 442 [1999]). Here, the record establishes that Banarsee was not in exclusive control of the subject premises and plaintiff offered no evidence from which it could be inferred that Banarsee was in exclusive control.

Motion seeking leave to supplement the record on appeal granted. Concur—Saxe, J.E, Buckley, McGuire, Moskowitz and Acosta, JJ.