YADEGAR v. Herman B. Stein, appellant. (2007)

In a consolidated action to recover damages for personal injuries, etc., the defendant Herman B. Stein appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated September 8, 2003, as (1) denied that branch of his cross motion which was for summary judgment dismissing the complaint insofar as asserted against him, (2) upon renewal, granted the cross motion of the defendant International Food Market for summary judgment dismissing the complaint insofar as asserted against it, and (3) granted the cross motion of the defendant Roslyn Grill, Inc., d/b/a Hamid's Diner, and Hamid Banayan for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the appeal from so much of the order as, upon renewal, granted the cross motion of the defendant International Food Market for summary judgment dismissing the complaint insofar as asserted against it, and granted the cross motion of the defendant Roslyn Grill, Inc., d/b/a Hamid's Diner, and Hamid Banayan for summary judgment dismissing the complaint insofar as asserted against them is dismissed as academic in light of the determination of the appeal from so much of the order as denied that branch of the cross motion of the defendant Herman B. Stein which was for summary judgment dismissing the complaint insofar as asserted against him;  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, and that branch of the cross motion of the defendant Herman B. Stein which was for summary judgment dismissing the complaint insofar as asserted against him is granted;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Herman B. Stein.

 The plaintiff Shala Yadegar sustained injuries when she tripped and fell over an area of raised and broken asphalt in a parking lot owned by the defendant Herman B. Stein.  “[A]n out-of-possession owner or lessor is not liable for injuries that occur on the premises unless that entity retained control of the premises or is contractually obligated to repair the unsafe condition” (Carvano v. Morgan, 270 A.D.2d 222, 223, 703 N.Y.S.2d 534).   Stein satisfied his burden on his motion for summary judgment dismissing the complaint insofar as asserted against him by demonstrating that he was an out-of-possession landlord who was not obligated to maintain or repair the parking lot (see Salgado v. Ring, 21 A.D.3d 362, 363, 798 N.Y.S.2d 920;  Knipfing v. V & J, Inc., 8 A.D.3d 628, 629, 779 N.Y.S.2d 244;  Ahmad v. City of New York, 298 A.D.2d 473, 474, 748 N.Y.S.2d 777).

 In opposition, the plaintiffs failed to raise a triable issue of fact.  “Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when ‘a specific statutory violation exists and there is a significant structural or design defect’ ” (Lowe-Barrett v. City of New York, 28 A.D.3d 721, 722, 815 N.Y.S.2d 630, quoting Stark v. Port Auth. of N.Y. & N.J., 224 A.D.2d 681, 682, 639 N.Y.S.2d 57).   Here, however, although Stein retained a right to re-enter the premises, the plaintiffs did not allege the violation of a statutory provision and presented no evidence demonstrating that the raised and broken asphalt in the parking lot constituted a significant structural or design defect (see Schwegler v. City of Niagara Falls, 21 A.D.3d 1268, 801 N.Y.S.2d 873;  Salgado v. Ring, supra 21 A.D.3d at 363, 798 N.Y.S.2d 920;  Seney v. Kee Assoc., 15 A.D.3d 383, 384-385, 790 N.Y.S.2d 170;  Sangiorgio v. Ace Towing & Recovery, 13 A.D.3d 433, 787 N.Y.S.2d 51).   Accordingly, Stein's cross motion should have been granted.

In light of this determination, we need not address the moving defendant's remaining contentions.