Santiago v. John J. Lease Realtors

304 A.D.2d 743, 757 N.Y.S.2d 800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants John J. Lease Realtors and John J. Lease III appeal from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 15, 2002, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Terry Santiago allegedly was injured when she tripped and fell on an exterior stair at her rented home in New Windsor. The defendants John J. Lease, Inc., John J. Lease Realtors, and John J. Lease III moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against John J. Lease, Inc., but found issues of fact as to whether the appellants were acting, inter alia, as managing agents responsible for the maintenance of the premises.

The appellants failed to sustain their burden in the first instance of eliminating all issues of fact entitling them prima facie to summary judgment (see Winegrad v New York Univ. Med. Ctr. 64 NY2d 851, 853 [1985]). They did not establish as a matter of law the capacity in which they were acting and the record remains unsettled as to whether they were merely employed by the corporate owner or were retained as independent managing agents in complete and exclusive control of the management and operation of the premises (see Guerrero v Djuko Realty, 300 AD2d 542 [2002]; Tucker v Meola, 170 AD2d 667 [1991]). Accordingly, the appellants were not entitled to summary judgment. Santucci, J.P., Krausman, Crane and Mastro, JJ., concur.