WHELAN v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (2005)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated April 23, 2004, which denied, as premature, its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied, as premature, the defendant's motion for summary judgment pursuant to CPLR 3212(f) because certain relevant discovery remained outstanding.   The plaintiff alleged that she was injured when she slipped and fell on an icy metal plate in an area of La Guardia Airport that was part of a repair or construction project.   The defendant moved for summary judgment on the ground that it was an out-of-possession landlord that did not control the area where the plaintiff's accident occurred, and was not contractually or statutorily liable to repair or maintain the area.   Nevertheless, pursuant to the lease of the area where the accident occurred, the defendant retained the right to perform certain repairs and construction, and there is a question of fact as to whether the defendant performed any work in the area.   Accordingly, in light of the defendant's failure to comply with document demands regarding the work performed at the subject accident site, and with preliminary conference and compliance conference orders to appear for depositions, its motion was premature.

In light of our determination, we need not reach the defendant's remaining contention.