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Supreme Court, Appellate Term, New York.

Neil PARISI, Respondent, v. Elise L. ARGENTO, as Executrix of Norma Genco, Deceased, Appellant.

Decided: October 23, 2001

Present:  PATTERSON, J.P., GOLIA and RIOS, JJ. Zachary & Zachary, P. C., Staten Island (Deborah C. Zachary of counsel), for appellant. Tracy & Stilwell, P. C., Staten Island (Rodney Stilwell of counsel), for respondent.

Order unanimously reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

Generally, an out-of-possession owner or lessor of a premises is not liable for injuries that occur on the premises unless the owner or lessor has either retained control over the subject premises or is contractually obligated to repair any unsafe conditions thereon (Suarez v. Skateland Presents Laces, 187 A.D.2d 500, 589 N.Y.S.2d 608).   Absent an agreement to the contrary, a lessor surrenders both possession and control to the lessee (Strunk v. Zoltanski, 96 A.D.2d 1074, 466 N.Y.S.2d 716).   In the case at bar, plaintiff is seeking to hold the defendant-owner liable for the injuries he sustained when he attended a Fourth of July party at the subject premises held by the occupants of the house (Daria Cino and Perry Cino) who are non-parties to the action.   Plaintiff was struck by fireworks which were set off on the premises by Perry Cino.

While Daria and Perry Cino were occupying the premises without a written lease, it is uncontroverted that they made rental payments to defendant.   Accordingly, they were tenants and not mere caretakers as plaintiff contends.   Under the circumstances, defendant cannot be held liable to plaintiff for the injuries he sustained on the premises since defendant relinquished exclusive possession and control of the premises.   Even assuming arguendo that defendant still retained possession and control, defendant would not be liable as the injuries were the result of an unforeseeable dangerous act.   Plaintiff failed to present any evidence that the defendant had either actual or constructive notice of such dangerous act (see, Ellis v. Mildred Elley School, 245 A.D.2d 994, 667 N.Y.S.2d 86).   Consequently, no material issues of fact exist and defendant's motion for summary judgment should have been granted.


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