Wright v. Feinblum

220 A.D.2d 660, 633 N.Y.S.2d 317, 1995 N.Y. App. Div. LEXIS 10682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), dated June 29, 1994, which granted the motion of the defendants William Feinblum, Nathan Ofgang, Mildred Rudolph, Rubin Pikus, Sharon Pikus, Gary Kahn, and Pearl Shub, all d/b/a 320 Eastern Parkway Company, for summary judgment dismissing the complaint insofar as it is asserted against them.

Ordered that the order is affirmed, with costs.

The law is well settled that an out-of-possession landlord is not liable for injuries that occur on the premises where the lessor neither retains control over the premises nor is contractually obligated to remedy unsafe conditions (see, Suarez v Skate-land Presents Laces, 187 AD2d 500; La Fleur v Power Test Realty Co., 159 AD2d 691). Accordingly, since the landlord in this case did not retain control and the duty of maintaining the area where the accident occurred was placed upon the tenant by the express terms of the lease, the Supreme Court properly granted the motion for summary judgment.

The plaintiff's remaining contention is improperly raised for the first time on appeal (see, Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757) and, in any event, is patently without merit (see, La Fleur v Power Test Realty Co., supra; Silver v Brodsky, 112 AD2d 213). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.