GRIPPO v. New York City Industrial Development Agency, et al., respondents. (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated April 27, 2006, which granted the motion of the defendants New York City Industrial Development Agency and FD Property Holding, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

 An out-of-possession property owner is not liable for injuries that occur on the property unless the owner has retained control over the premises or is contractually obligated to perform maintenance and repairs (see Nikolaidis v. La Terna Rest., 40 A.D.3d 827, 835 N.Y.S.2d 726;  Rhian v. PABR Assoc., LLC, 38 A.D.3d 637, 832 N.Y.S.2d 590;  Lindquist v. C & C Landscape Contrs., Inc., 38 A.D.3d 616, 831 N.Y.S.2d 523;  Gavallas v. Health Ins. Plan of Greater N.Y., 35 A.D.3d 657, 829 N.Y.S.2d 131;  Chery v. Exotic Realty, Inc., 34 A.D.3d 412, 824 N.Y.S.2d 364).   Here, the defendant New York City Industrial Development Agency (hereinafter IDA) established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord who retained no control over the premises where the plaintiff's accident occurred, and had no contractual obligation to maintain the premises or make repairs (see Tragale v. 485 Kings Corp., 39 A.D.3d 626, 834 N.Y.S.2d 256;  Lindquist v. C & C Landscape Contrs., Inc., 38 A.D.3d 616, 831 N.Y.S.2d 523;  Couluris v. Harbor Boat Realty, Inc., 31 A.D.3d 686, 820 N.Y.S.2d 282;  Salgado v. Ring, 21 A.D.3d 362, 798 N.Y.S.2d 920).   In opposition to IDA's prima facie showing, the plaintiff failed to raise a triable issue of fact (see Nikolaidis v. La Terna Rest., 40 A.D.3d 827, 835 N.Y.S.2d 726;  Gavallas v. Health Ins. Plan of Greater N.Y., 35 A.D.3d 657, 829 N.Y.S.2d 131;  Chery v. Exotic Realty, Inc., 34 A.D.3d 412, 824 N.Y.S.2d 364;  Salgado v. Ring, 21 A.D.3d 362, 798 N.Y.S.2d 920).

 The defendant FD Property Holding, Inc. (hereinafter FD Property), also established its prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that it relinquished control of the premises prior to the accident by entering into a sublease, and that the subtenant assumed all of its contractual duties, including the obligation to keep the premises in good condition and make all structural and nonstructural repairs.   In opposition, the plaintiff failed to raise an issue of fact as to whether FD Property exercised a sufficient degree of control over the premises to impose liability (see Salgado v. Ring, 21 A.D.3d 362, 798 N.Y.S.2d 920).