Windvand v. 4612 13th Avenue Realty Corp.

269 A.D.2d 527, 703 N.Y.S.2d 231, 2000 N.Y. App. Div. LEXIS 1985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant 4612 13th Avenue Realty Corp. appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated April 19, 1999, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

The appellant established that it was an out-of-possession landlord who did not retain sufficient control of the leased premises, and was not contractually obligated to repair and/or maintain the leased premises (see, Baker v Getty Oil Co., 242 AD2d 644). Thus, it was not liable for any injuries that occurred on the leased premises absent a showing by the plaintiff of a factual question as to whether it violated a duty imposed upon it by a statute and/or ordinance (see, Garcia v Home Ctr., 240 AD2d 629; Felder v Wank, 227 AD2d 442). Since the plaintiff failed to adduce evidence of any such alleged violation or to raise a triable issue of fact as to any other basis upon which liability could be imposed, the Supreme Court erred in denying the appellant’s motion for summary judgment (see, Toth v Pergament Home Ctr., 250 AD2d 599; Felder v Wank, supra; Pensabene v Incorporated Vil. of Val. Stream, 202 AD2d 486). O’Brien, J. P., Friedmann, Florio and Schmidt, JJ., concur.