Dennis Panico, appellant, v. Jiffy Lube International, Inc., defendant, Real Estate Oil Change Limited Partnership, et al., respondents.

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

Dennis Panico, appellant, v. Jiffy Lube International, Inc., defendant, Real Estate Oil Change Limited Partnership, et al., respondents.

2010–11170 (Index No. 1855/08)

Decided: July 12, 2011

JOSEPH COVELLO, J.P. RANDALL T. ENG CHERYL E. CHAMBERS ROBERT J. MILLER, JJ. Bragoli & Associates, P.C., Melville, N.Y. (Christopher Bragoli, Susan R. Nudelman, and Daniel A. Fried of counsel), for appellant. Martyn, Toher & Martyn, Mineola, N.Y. (Thomas M. Martyn of counsel), for respondents.

Argued—June 8, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered October 13, 2010, which granted the motion of the defendants Real Estate Oil Change Limited Partnership, and Real Estate Oil Change, LLC, for leave to reargue their motion for summary judgment dismissing the complaint insofar as asserted against them, which had been denied in an order of the same court entered April 16, 2010, and upon reargument, vacated so much of the determination in the order entered April 16, 2011, as denied the motion for summary judgment, and thereupon granted the motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order entered October 13, 2010, is affirmed insofar as appealed from, with costs.

The defendants Real Estate Oil Change Limited Partnership, and Real Estate Oil Change, LLC (hereinafter together the defendants), established their prima facie entitlement to judgment as a matter of law by establishing that they were out-of-possession landlords who did not retain control over the premises and were not contractually obligated to maintain or repair the premises (see McElroy v. Bernstein, 72 AD3d 757, 758;  Kane v. Port Auth. of N.Y. & N.J., 49 AD3d 503, 503–504;  Shrenkel v New York State Dormitory Auth., 266 A.D.2d 369).   The defendants further established, prima facie, that they did not create the allegedly dangerous conditions that caused the plaintiff's injuries, nor lease the premises knowing that dangerous conditions existed on the premises (see McElroy v. Bernstein, 72 AD3d at 758;  Lomedico v. Cassillo, 56 AD3d 1271, 1271).   In opposition, the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

Accordingly, upon reargument, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

COVELLO, J.P., ENG, CHAMBERS and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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