NEGRON v. RODRIGUEZ RODRIQUEZ STORAGE WAREHOUSE INC (2005)

Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered April 14, 2004, dismissing the complaint pursuant to the prior grant of defendant's motion for summary judgment, unanimously affirmed, without costs.

 Plaintiff was allegedly injured while moving a piano, and commenced this action against the owner of the premises.   Defendant established that its sole shareholder and principal was also sole shareholder and principal of plaintiff's employer, the lessee of the premises where the accident occurred.   Under these circumstances, the motion court properly determined that plaintiff's exclusive remedy was benefits under the Workers' Compensation Law (see Macchirole v. Giamboi, 97 N.Y.2d 147, 150, 736 N.Y.S.2d 660, 762 N.E.2d 346 [2001];  Heritage v. Van Patten, 59 N.Y.2d 1017, 1018-1019, 466 N.Y.S.2d 958, 453 N.E.2d 1247 [1983] ).

 In any event, liability against defendant landowner may be predicated only upon the owner's possession and control of the premises (see Butler v. Rafferty, 100 N.Y.2d 265, 270, 762 N.Y.S.2d 567, 792 N.E.2d 1055 [2003] );  an out-of-possession owner who did not create the unsafe condition will not be liable for injuries that occur on the premises unless it has retained control over the premises or is contractually or statutorily obligated to repair or maintain the property (see Torres v. West St. Realty Co., 21 A.D.3d 718, 800 N.Y.S.2d 683 [2005];  Davis v. HSS Props. Corp., 1 A.D.3d 153, 154, 767 N.Y.S.2d 72 [2003], lv. denied 1 N.Y.3d 509, 777 N.Y.S.2d 18, 808 N.E.2d 1277 [2004] ).   Here, defendant presented unrefuted evidence that it was an out-of-possession owner and had vested exclusive possession and control of the premises to plaintiff's employer;  that defendant had no workers or other personnel on the property;  and that it did not own and/or maintain any of the equipment there.   Consequently, summary judgment dismissing the complaint was appropriately granted to defendant.