Federico Bonilla, et al., plaintiffs, v. 702 LLC (2026)

Argued—January 26, 2026

DECISION & ORDER

O/

In an action to recover damages for personal injuries, etc., the defendant Livonia Deli Corp. appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated May 16, 2024.  The order, insofar as appealed from, granted the motion of the defendant third-party plaintiff 702 Rockaway Avenue, LLC, for summary judgment dismissing the complaint and all cross-claims and counterclaims insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant third-party plaintiff 702 Rockaway Avenue, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the defendant Livonia Deli Corp. is not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 AD3d 144, 156–157);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant third-party plaintiff 702 Rockaway Avenue, LLC.

The plaintiff Federico Bonilla was allegedly injured when he was struck on his head by closing cellar doors as he ascended from the basement of a property to the street after delivering cases of beer.  The defendant third-party plaintiff, 702 Rockaway Avenue, LLC (hereinafter Rockaway), owned the property and leased retail space and the basement to the defendant Livonia Deli Corp. (hereinafter Livonia).  Rockaway moved for summary judgment dismissing the complaint and all cross-claims and counterclaims insofar as asserted against it.  In an order dated May 16, 2024, the Supreme Court, inter alia, granted the motion.  Livonia appeals.

“An out-of-possession landlord and its agent are generally not responsible for injuries that occur on the subject premises unless the landlord has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” (Tardif v Hauppauge Off. Park Assoc., LLC, 184 AD3d 887, 889;  see Vaughan v Triumphant Church of Jesus Christ, 193 AD3d 1104, 1104;  Fuzaylova v. 63–28 99th St. Farm Ltd., 161 AD3d 946, 946).  While “[r]eservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition” (Denermark v. 2857 W. 8th St. Assoc., 111 AD3d 660, 661), “control refers to the ability of an out-of-possession landlord to remedy dangerous conditions” (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 17), and “[i]n the absence of a statutory violation, there must be a significant structural or design defect present in order for a right of re-entry to constitute sufficient retention of control to impose liability” (Alexandre v. Shih T. Wang, 241 AD3d 1223, 1224).

Here, the evidence submitted by Rockaway, including a written lease, transcripts of the deposition testimony of a superintendent of the property and of a partner of Rockaway, and photographs of the cellar doors, established, prima facie, that Rockaway was an out-of-possession landlord that had relinquished control of the property to Livonia and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct (see Miranda v. 1320 Entertainment, Inc., 230 AD3d 755, 757).  The undisputed testimony established that the cellar doors were secured with a padlock that only Livonia had the key to and that Livonia, not Rockaway, periodically maintained the cellar doors, thus, Rockaway did not have the ability to remedy the lack of a safety bar located on the interior of the cellar doors (see Alexandre v. Shih T. Wang, 241 AD3d at 1224–1225;  Tragale v. 485 Kings Corp., 39 AD3d 626, 627).  Further, Rockaway established that it did not create the alleged hazardous condition and that it had no actual or constructive notice of it (see Vaughan v Triumphant Church of Jesus Christ, 193 AD3d at 1104;  Figueroa v. Gueye, 66 AD3d 638, 639).

In opposition to Rockaway's prima facie showing, Livonia failed to raise a triable issue of fact.  Livonia's contention that Rockaway violated Administrative Code of the City of New York § 19–119, Multiple Dwelling Law § 78, and Administrative Code § 7–210 is improperly raised for the first time on appeal (see Lugo v. Austin–Forest Assoc., 99 AD3d 865, 866).

Accordingly, the Supreme Court properly granted those branches of Rockaway's motion which were for summary judgment dismissing all cross-claims and counterclaims insofar as asserted against it.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court