KOPETIC v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (2019)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 30, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established its prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when, while operating a top loader in order to move shipping containers, the top loader tipped over due to uneven ground.  Defendant, through its submission of the lease for the subject premises, showed that it was an out-of-possession landlord with no duty to maintain the area where the accident occurred or remedy the defect alleged (see Kittay v. Moskowitz, 95 A.D.3d 451, 944 N.Y.S.2d 497 [1st Dept. 2012], lv denied 20 N.Y.3d 859, 2013 WL 518556 [2013];  Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [1st Dept. 2010]).

In opposition, plaintiff failed to raise a triable issue of fact.  Although defendant maintained a right to re-enter in the lease, plaintiff failed to adduce evidence that the alleged defect, depressions in the asphalt near the loading berths, was a significant structural defect in violation of an applicable statutory provision (see Kittay at 452, 944 N.Y.S.2d 497;  DeLeon v. Port Auth. of N.Y. & N.J., 306 A.D.2d 146, 761 N.Y.S.2d 54 [1st Dept. 2003]).  Furthermore, defendant's intermittent presence at the premises was for the purpose of ensuring that it was being occupied according to the terms of the lease, and plaintiff acknowledges that defendant never exercised any control over either the lessee's operations or maintenance of the property (compare Dimas v. 160 Water St. Assoc., 191 A.D.2d 290, 594 N.Y.S.2d 262 [1st Dept. 1993]).