CABRAL v. ZEREGA REALTY LLC (2021)

This personal injury action stems from the injured plaintiff's fall on February 13, 2017 at the premises located at 751 Zerega Avenue, County of Bronx, City and State of New York. The injured plaintiff slipped and fell on an accumulation of ice in the bus yard of the premises where she worked. She brought this action against the owner, Zerega Realty LLC, (hereinafter “Zerega”). Zerega now moves for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint on the ground that it owed no duty to plaintiff to keep the premises safe as an out-of-possession landlord.

All of the plaintiff's allegations in this case focus on the alleged failure to remove snow and ice from a bus yard that was leased by the plaintiff's employer Pioneer Transportation (hereinafter “Pioneer”) from Zerega. It is undisputed that at the time of the plaintiff's accident the bus yard was leased to Pioneer by Zerega and that Pioneer was solely responsible for the maintenance of the premises including performing snow and ice removal. In accordance with the Lease Agreement, Pioneer was responsible for keeping the premises in good condition and making all necessary repairs. This is confirmed by the lease terms, Zerega's deposition testimony of witness Neil Strahl and the attestation of non-party witness and Pioneer Shop Manager Bobby Girod.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

An out-of-possession landlord is generally not liable for the condition of the demised premises unless the landlord had a contractual obligation to maintain the premises, or right to reenter in order to inspect or repair, and the defective condition is “a significant structural or design defect that is contrary to a specific statutory safety provision” (see Babich v R.G.T. Rest. Corp., 75 AD3d 439, 440 [1st Dept 2010]).

Here, the complaint sounds in common-law-negligence and the pleadings do not allege the violation of a statute. The admissible evidence submitted by Zerega in support of its motion for summary judgment dismissing the complaint established prima facie that it was an out-of-possession landlord, that the lease placed responsibility for maintenance and repair squarely on the tenant, Pioneer. Consequently, Zerega met its initial burden of establishing that it owed no duty to the plaintiff.

In opposition, the plaintiff failed to raise a triable issue of fact as to whther the defendant had a duty to remove snow or ice under statute or regulation, the terms of the lease, or a course of conduct (see Duggan v Cronos Enters., Inc., 133 AD3d 564, 564 [2nd Dept 2015]). Plaintiff's contention, that Zerega is liable because it retained the right to reenter the premises to inspect and make repairs, is without merit. “A landlord's reservation of the right to enter property to inspect and make repairs does not in itself give rise to a duty to make repairs.” (Keum Ok Han v Kemp, Pin & Ski, LLC, 142 AD3d 688, 689 [2nd Dept 2016]). The lease between Zerega and Pioneer imposes no contractual duty on Zerega to clean the sidewalk, and, although Zerega retained the right to reenter, Zerega demonstrated, prima facie, hat the alleged defect, an icy condition on the sidewalk was not a significant structural or design defect in violation of a specific statutory provision (see Robinson v M. Parisi & Son Constr. Co. Inc., 51 AD3d 653, 654 [2nd Dept 2008]).

The plaintiff's alternative contention, that Zerega is not an out-of-possession landlord because it is the alter ego of the tenant, Pioneer, is not supported by facts and is self-defeating. If Zerega is the alter ego of Pioneer, the plaintiff is barred from recovery by the exclusivity provisions of the Workers’ Compensation Law (see Workers’ Compensation law §§ 11, 29 [6]; Wiener v City of New York, 84 AD3d 140, 146 [2011]).

Accordingly, Zerega is an out-of-possession landlord entitled to summary judgment as a matter of law. Since Zerega did not owe a duty to plaintiff, this Court need not address whether it had notice of the alleged dangerous condition (see Ferraro v 270 Skip Lane, LLC, 177 AD3d 651, 653 [2nd Dept 2019]).

Accordingly, it is hereby

ORDERED that the plaintiff's complaint is dismissed against the defendant Zerega Realty LLC, in its entirety.

This is the Decision and Order of the Court.

Adrian Armstrong, J.