BRIDGHAM v. Key Bank Of New York, Appellant.

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

Anita M. BRIDGHAM et al., Respondents, v. FAIRVIEW PLAZA INC., Defendant, Key Bank Of New York, Appellant.

Decided: January 22, 1999

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Carter, Conboy, Case, Blackmore, Napierski & Maloney (Mark J. Dolan of counsel), Albany, for appellant. Edward J. Carroll, Kingston, for respondents.

Appeal from an order of the Supreme Court (Connor, J.), entered July 14, 1998 in Columbia County, which denied a motion by defendant Key Bank of New York for summary judgment dismissing the complaint against it.

Plaintiff Anita M. Bridgham (hereinafter plaintiff) alleges that she sustained the injuries forming the basis for this action when she slipped and fell on an icy spot on a parking space adjacent to a branch office of defendant Key Bank of New York (hereinafter defendant) located in the Fairview Plaza shopping center (hereinafter the plaza) in the Town of Greenport, Columbia County.   Defendant moved for summary judgment dismissing the complaint against it, supporting its motion with prima facie evidence that it neither possessed, controlled nor made special use of the parking spaces adjacent to its building.   Because plaintiffs failed to counter defendant's evidentiary showing with competent evidence raising a genuine question of fact on the issue of defendant's liability, we are constrained to reverse Supreme Court's order and grant summary judgment in favor of defendant.

 Initially, we conclude that neither the proffered site plan of the plaza nor the metes and bounds description of the premises leased by defendant competently establishes that the subject parking space was within the premises leased by defendant.   In any event, the lease between defendant and the plaza provides that all plaza parking spaces, including those within the leased premises, were to “be available for the common use of all [p]laza tenants and/or the non-exclusive right of [defendant] for parking of [defendant's] vehicles and those of [defendant's] customers and visitors” and, in fact, that the entire parking area was to “be maintained as an open unit with no part or portion thereof fenced or barricaded or separated in any manner whatever * * * affording * * * freedom of movement at all times to and from any part thereof”.   The lease also provided that the plaza was to keep the entire plaza parking area, including the leased premises, “reasonably free from snow, ice, refuse and obstructions”.   Under the circumstances, we agree with defendant that the entire parking lot, including the parking spaces adjacent to the bank building, “was clearly a common area under the terms of the lease agreement” (Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 958, 578 N.Y.S.2d 724), that the bank neither exercised control over the parking lot nor had a right to possession of it (see, id., at 958, 578 N.Y.S.2d 724;  Del Giacco v. Noteworthy Co., 175 A.D.2d 516, 517, 572 N.Y.S.2d 784) and that, as a consequence, it owed no duty of care with respect to any unsafe condition existing therein (see, Masterson v. Knox, 233 A.D.2d 549, 550, 649 N.Y.S.2d 108;  Zadarosni v. F. & W. Restauranteurs of Southeast, 192 A.D.2d 1051, 1052, 597 N.Y.S.2d 220;  Turrisi v. Ponderosa Inc., supra, at 958, 578 N.Y.S.2d 724).

 Plaintiffs' remaining contentions are also found to be unavailing.   Notably, speculation that the bank may have created the dangerous condition by depositing snow in the parking space or by virtue of the fact that its walkway was more elevated than the parking lot is insufficient to create a genuine question of fact.   Finally, a duty to warn of a dangerous condition does not arise merely by virtue of a customer's use of a common area (see, Zadarosni v F. & W. Restauranteurs of Southeast, supra, at 1052, 597 N.Y.S.2d 220;  McGill v. Caldors Inc., 135 A.D.2d 1041, 1043, 522 N.Y.S.2d 976).

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant Key Bank of New York and complaint dismissed against it.

MERCURE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.

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