MASSARO v. MANFREDI AUTO CENTRAL LLC (2026)

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about March 6, 2025, which denied plaintiffs' motion for partial summary judgment as to liability against defendants and granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs' argument that defendants' failure to submit the lease in their motion papers requires dismissal of their motion is improperly raised for the first time on appeal and therefore is unpreserved for our review (see Greca v. Choice Assoc.  LLC, 200 A.D.3d 415, 415–416, 154 N.Y.S.3d 780 [1st Dept 2021];  DiLeo v. Blumberg, 250 A.D.2d 364, 366, 672 N.Y.S.2d 319 [1st Dept 1998] ).

An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it “(1) is contractually obligated to make repairs to maintain the premises or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision” (see Vasquez v. Rector, 40 A.D.3d 265, 266, 835 N.Y.S.2d 159 [1st Dept 2007] ).

Defendants established that they were legally out-of-possession landlords.  Periodic visits by one of defendants' agents to the premises to collect stored files, after contacting the tenant, does not establish a course of conduct sufficient to call into question whether defendants maintained control over the premises (see Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136, 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 [2019];  Gronski v. County of Monroe, 18 N.Y.3d 374, 380–381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011] ).  Furthermore, the record does not establish that defendants conducted any maintenance or repairs subsequent to the tenant assuming possession and control of the premises (see Dimas v. 160 Water St. Assoc., 191 A.D.2d 290, 290, 594 N.Y.S.2d 262 [1st Dept 1993] ).

Plaintiffs did not raise a triable issue of fact as to whether defendants were contractually obligated to repair the ceiling leak or whether the leak was a structural or design defect contrary to a specific statutory provision (see Bawa v. JJ Operating Inc., 234 A.D.3d 517, 518, 224 N.Y.S.3d 392 [1st Dept 2025];  Espinoza v. Minus5 HH NYC, Inc., 189 A.D.3d 499, 500, 133 N.Y.S.3d 798 [1st Dept 2020] ).