Nieves v. Burnside Associates

59 A.D.3d 290, 874 N.Y.S.2d 404

Opinion

Order, Supreme Court, Bronx County (Dominic R. Massaro, J), entered June 26, 2008, which denied defendant Burnside’s motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Burnside Associates, LLC dismissing the complaint as against it.

Out-of-possession owner Burnside, which had no contractual obligation to repair, cannot be liable for plaintiffs alleged injury absent an allegation that the defective condition resulting in the accident constituted a specific statutory safety violation (see Vasquez v The Rector, 40 AD3d 265, 266 [2007]); plaintiff failed to establish any such violation. Moreover, Burnside’s managing agent averred, without contradiction, that Burnside had never been given actual notice of the defect. With respect to constructive notice, plaintiff testified that despite numerous visits to the workplace parking lot where she fell, she had never before seen the defect in the pavement. There was no evidence that Burnside had created the defect when it constructed the parking lot several years earlier.

In view of the foregoing, it is unnecessary to address plaintiffs remaining contentions. Concur—Andrias, J.P., Sweeny, McGuire and DeGrasse, JJ. [See 20 Misc 3d 1106(A), 2008 NY Slip Op 51248(U).]