PULLIAM v. Patricia Correra, Defendant. (2009)

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 31, 2007, which, in an action for personal injuries, granted the motion of defendant Deans Management of N.Y., Inc. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

 Defendant established its prima facie entitlement to summary judgment by submitting evidence demonstrating that as an out-of-possession owner with no contractual obligation to repair, it is not liable for the injured plaintiff's injury.   In opposition, plaintiffs failed to raise a triable issue of fact, as they did not allege or submit evidence that the defective condition resulting in the accident constituted a specific statutory safety violation (see Nieves v. Burnside Assoc., 59 A.D.3d 290, 874 N.Y.S.2d 404 [1st Dept. 2009];  Vasquez v. The Rector, 40 A.D.3d 265, 266, 835 N.Y.S.2d 159 [2007];  Velazquez v. Tyler Graphics, 214 A.D.2d 489, 490, 625 N.Y.S.2d 537 [1995] ).

 Nor may plaintiffs succeed on the claim that defendant is liable based on its nondelegable duty to members of the general public to keep their premises safe, where its premises are open to the public (see e.g. Thomassen v. J & K Diner, 152 A.D.2d 421, 424, 549 N.Y.S.2d 416 [1989], appeal dismissed 76 N.Y.2d 771, 559 N.Y.S.2d 979, 559 N.E.2d 673 [1990] ), since the injured plaintiff was injured in an area of the premises that was not open to the general public (see Parsons v. City of New York, 195 A.D.2d 282, 284, 599 N.Y.S.2d 594 [1993] ).

 Plaintiffs' claim that a triable issue exists with regard to defendant's lease obligations is unpreserved as it is raised for the first time on appeal.   Plaintiffs' failure to raise this issue when defendant moved for summary judgment precluded defendant from including in its reply papers the documentary evidence plaintiffs assert is missing (see 815 Park Ave. Owners v. Fireman's Ins. Co. of Washington, D.C., 225 A.D.2d 350, 355, 639 N.Y.S.2d 325 [1996], lv. denied 88 N.Y.2d 808, 647 N.Y.S.2d 713, 670 N.E.2d 1345 [1996] ).

We have considered plaintiffs' remaining contentions and find them unavailing.