Damian Pabon, appellant, v. B.R.P. Realty Corp., respondent, et al., defendant (and a third-Party action). (2026)

Argued—January 6, 2026

DECISION & ORDER

Q/

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered April 9, 2021, and (2) an order of the same court entered April 19, 2021.  The order entered April 9, 2021, insofar as appealed from, as amended, granted that branch of the motion of the defendant B.R.P. Realty Corp. which was for summary judgment dismissing the complaint insofar as asserted against it and denied that branch of the plaintiff's cross-motion which was to compel that defendant to produce an additional witness for an examination before trial.  The order entered April 19, 2021, sua sponte, in effect, amended the order entered April 9, 2021, by deleting the provision thereof stating that summary judgment was awarded to the plaintiff and substituting therefor a provision stating that summary judgment was awarded to the defendant B.R.P. Realty Corp.

ORDERED that the appeal from the order entered April 19, 2021, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a] ), and leave to appeal has not been granted;  and it is further,

ORDERED that the order entered April 9, 2021, as amended, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant B.R.P. Realty Corp.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he was assaulted on premises owned by the defendant B.R.P. Realty Corp. (hereinafter BRP) and leased by the defendant Whitebox Art Center.  Thereafter, BRP moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.  The plaintiff opposed BRP's motion and cross-moved, among other things, to compel BRP to produce an additional witness for an examination before trial.  In an order entered April 9, 2021, the Supreme Court, inter alia, in effect, granted that branch of BRP's motion which was for summary judgment dismissing the complaint insofar as asserted against it and denied that branch of the plaintiff's cross-motion.  In an order entered April 19, 2021, the court, sua sponte, in effect, amended the order entered April 9, 2021, by deleting the provision thereof stating that summary judgment was awarded to the plaintiff and substituting therefor a provision stating that summary judgment was awarded to BRP. The plaintiff appeals.

“An owner or tenant in possession of real property owes a duty to maintain the property in a reasonably safe condition” (Patterson v. H.E.H., LLC, 217 AD3d 879, 880 [alteration and internal quotation marks omitted] ).  In contrast, “an out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security” (Tambriz v. P.G.K. Luncheonette, Inc., 124 AD3d 626, 628;  see DeJesus v New York City Health & Hosps.  Corp., 309 A.D.2d 729, 729).

Here, the evidence submitted by BRP established, prima facie, that it was an out-of-possession landlord that did not retain control over the premises where the plaintiff allegedly was assaulted (see Ryals v. West 21st St. Props., LLC, 200 AD3d 1084, 1085;  Bryan v. Crobar, 65 AD3d 997, 998) and that it was not contractually obligated to provide security (see Tambriz v. P.G.K. Luncheonette, Inc., 124 AD3d at 628).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted that branch of BRP's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court