ONG v. FIRSTSERVICE RESIDENTIAL NEW YORK INC LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated February 28, 2024.  The order, insofar as appealed from, granted those branches of the separate motions of the defendants third-party plaintiffs and the defendants FirstService Residential New York, Inc., and 55 Liberty Owners Corp. which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents.

In May 2017, the plaintiff was descending a staircase located at a building owned by 55 Liberty Owners Corp. (hereinafter 55 Liberty), as she was arriving for work with her employer at the time, Koodo Sushi Corp. (hereinafter Koodo), which operated a restaurant in the cellar section of the building.  The plaintiff allegedly slipped and fell when she got to the bottom steps of the subject staircase.  The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as a result of the accident against 55 Liberty and its property management company, FirstService Residential New York, Inc. (hereinafter FirstService), which managed the residential sections of the building during the relevant time period, Liberty & Nassau Associates, LLC (hereinafter LNA), which leased the building's commercial space from 55 Liberty during the relevant time period, and Sutton Management Corp. (hereinafter Sutton), which managed the commercial space in the building for LNA during the relevant time period.  LNA subleased the cellar level restaurant space in the building to Koodo at the time of the accident.

Thereafter, 55 Liberty and FirstService moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them, arguing that 55 Liberty was an out-of-possession landlord that owed no duty of care to the plaintiff, that FirstService owed no duty of care to the plaintiff given its lack of exclusive control and authority over the subject property, and that the plaintiff cannot prove causation without resorting to speculation.  LNA and Sutton moved, among other things, for summary judgment dismissing the amended complaint insofar as asserted against them on similar grounds.  In an order dated February 28, 2024, the Supreme Court, inter alia, granted those branches of the separate motions.  The plaintiff appeals.

In general, “ ‘[a] property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition’ ” (Amparo v Christopher One Corp., 225 AD3d 652, 654, quoting Cabanas v Qiu Yu Zou, 215 AD3d 726, 727;  see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872).  However, “ ‘an out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct’ ” (Alexandre v Shih T. Wang, 241 AD3d 1223, 1224 [alterations omitted], quoting Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5, 233 AD3d 814, 815;  see Mejia v 2959 Fulton St. Realty, Inc., 240 AD3d 881, 883).

Here, the evidence submitted by 55 Liberty and LNA, including, among other things, a written lease between 55 Liberty and LNA, a written sublease between LNA and Koodo, and transcripts of the deposition testimony of employees and officers of the defendants, established, prima facie, (1) that 55 Liberty was an out-of-possession landlord that had relinquished control of the subject property to LNA and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct, and (2) that LNA was an out-of-possession sublessor that had relinquished control of the commercial space where the subject staircase was located to Koodo and had not assumed a duty to maintain the subject commercial space in a reasonably safe condition by a course of conduct (see Miranda v 1320 Entertainment, Inc., 230 AD3d 755, 757).  Although 55 Liberty and LNA reserved a right of entry under the subject lease and sublease, respectively, this did not provide a sufficient basis on which to impose liability upon those defendants for injuries caused by a dangerous condition, as the alleged condition did not violate a specific applicable statute, nor was it a significant structural or design defect (see id.;  Derosas v Rosmarins Land Holdings, LLC, 148 AD3d 988, 991).  In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562).

The Supreme Court also properly granted those branches of the defendants' respective motions which were for summary judgment dismissing the amended complaint insofar as asserted against FirstService and Sutton.  In opposition to those defendants' prima facie showing that they did not have complete and exclusive control of management and operation of the subject commercial space, the plaintiff failed to raise a triable issue of fact (see Cacciuottolo v Brown Harris Stevens Mgt., 197 AD3d 551, 552–553).

Accordingly, the Supreme Court properly granted those branches of the defendants' respective motions which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

The defendants' remaining contention need not be reached in light of our determination.

GENOVESI, J.P., WAN, LANDICINO and HOM, JJ., concur.