SCHWEGLER v. Frank A. Amendola and Lite Trix, Inc., Defendants-Respondents.

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Supreme Court, Appellate Division, Fourth Department, New York.

Debra SCHWEGLER and Paul Schwegler, Plaintiffs-Appellants, v. CITY OF NIAGARA FALLS, Defendant, A Festival of Lights, Inc., Defendant-Appellant, Frank A. Amendola and Lite Trix, Inc., Defendants-Respondents.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, HURLBUTT, KEHOE, AND PINE, JJ. Law Offices of Eugene C. Tenney, Buffalo (Edward J. Schwendler, III, of Counsel), for Plaintiffs-Appellants. Walsh & Wilkins, Buffalo (Deborah A. Chimes of Counsel), for Defendant-Appellant. Kenney, Shelton, Liptak & Nowak, LLP, Buffalo (Tamara M. Harbold of Counsel), for Defendant-Respondent Frank A. Amendola. O'Neill, Cantwell, Feeley & Brownell, Buffalo (Earl K. Cantwell, II, of Counsel), for Defendant-Respondent Lite Trix, Inc.

Plaintiffs commenced this action seeking damages for injuries sustained by Debra Schwegler (plaintiff) during a holiday festival run by defendant A Festival of Lights, Inc. (FOL) on property owned by defendant Frank A. Amendola.   FOL had hired defendant Lite Trix, Inc. (Lite Trix) to design and build some of the displays used in the festival.   Plaintiff was injured when a “candy cane cylinder” used to cover an electrical outlet fell on her.   Lite Trix and Amendola each moved for summary judgment dismissing the amended complaint against them.   We conclude that Supreme Court properly granted both motions.

 By establishing that it did not own, possess or control the property and that it did not create the dangerous condition, Lite Trix established its entitlement to judgment as a matter of law (see Santo v. Pick Quick Foods, 305 A.D.2d 399, 758 N.Y.S.2d 525).   Contrary to the contention of plaintiffs and FOL, their submission of circumstantial evidence that Lite Trix created the dangerous condition was speculative and thus was insufficient to raise a triable issue of fact (see generally Feder v. Tower Air, 12 A.D.3d 190, 191, 785 N.Y.S.2d 49;  O'Connor v. Lakeview Assoc., 306 A.D.2d 518, 519, 761 N.Y.S.2d 858).   Even assuming, arguendo, that Lite Trix assumed a duty to cover the electrical outlet at issue, we conclude that plaintiffs failed to raise a triable issue of fact whether the conduct of Lite Trix “placed plaintiff in a more vulnerable position than plaintiff would have been in had [Lite Trix] done nothing” (Heard v. City of New York, 82 N.Y.2d 66, 72, 603 N.Y.S.2d 414, 623 N.E.2d 541, rearg. denied 82 N.Y.2d 889, 610 N.Y.S.2d 155, 632 N.E.2d 465;  see Van Hove v. Baker Commodities, 288 A.D.2d 927, 732 N.Y.S.2d 803).

 We further conclude that Amendola established his entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact.   Although landlords who retain control of the premises may be liable for defects (see Jones v. Bartlett, 275 A.D.2d 956, 713 N.Y.S.2d 407, lv. denied 96 N.Y.2d 705, 723 N.Y.S.2d 131, 746 N.E.2d 186;  Young v. J.M. Moran Props., 259 A.D.2d 1037, 1038, 688 N.Y.S.2d 354;  see generally Putnam v. Stout, 38 N.Y.2d 607, 616-618, 381 N.Y.S.2d 848, 345 N.E.2d 319), we conclude that Amendola established that he did not retain sufficient control to remain liable for defects on the premises.   Pursuant to the lease between Amendola and FOL, Amendola retained the right to “visit and examine [the] premises,” and to approve alterations, additions or improvements.   The lease further provided that Amendola's agents and servants were permitted to enter the premises to make necessary repairs.   We conclude that those lease provisions are insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord who reserves the right to enter the leased premises to make necessary repairs.  “ ‘[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists,’ ” and there is no evidence in the record of a specific statutory violation (Regensdorfer v. Central Buffalo Project Corp., 247 A.D.2d 931, 932, 668 N.Y.S.2d 291, quoting Mendola v. 2125 Seneca St., 237 A.D.2d 902, 903, 654 N.Y.S.2d 922), nor is there evidence that Amendola withheld his consent or approval with respect to the tenant's right to make any repairs (see Schlesinger v. Rockefeller Ctr., 119 A.D.2d 462, 463, 500 N.Y.S.2d 510).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.