Boris Khanimov, appellant, v. McDonald's Corporation, et al., respondents, et al., defendants.

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

Boris Khanimov, appellant, v. McDonald's Corporation, et al., respondents, et al., defendants.

2012–11190 (Index No. 20114/07)

Decided: October 29, 2014

REINALDO E. RIVERA, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN SHERI S. ROMAN, JJ. Serhiy Hoshovsky, New York, N.Y., for appellant. Charles Siegel, New York, N.Y. (Stuart Apploff of counsel), for respondents and defendants McDonald's 82 Court Street Brooklyn New York, Franchise Realty Interstate Corp., and 82 Court Street Corporation.

Submitted—September 23, 2014

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), entered September 24, 2012, which granted the motion of the defendants McDonald's Corporation and McDonald's Restaurants of New York, Inc., for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs to the respondents.

On March 16, 2007, the plaintiff allegedly was injured when he slipped and fell in a McDonald's restaurant located at 82 Court Street in Brooklyn.   As a result of his fall, the plaintiff allegedly sustained burns after the hot coffee he had just been served splashed upon him.   The plaintiff commenced the instant action to recover damages for personal injuries against, among others, McDonald's Corporation, which was the franchisor for the restaurant and the owner of the premises, and McDonald's Restaurants of New York, Inc., a corporation affiliated with McDonald's Corporation (hereinafter together the McDonald's defendants).

The McDonald's defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them.   In an order entered September 24, 2012, the Supreme Court granted the motion.   The plaintiff appeals, and we affirm.

Contrary to the plaintiff's contention, the motion of the McDonald's defendants for summary judgment was timely (see CPLR 3212[a];  Brill v. City of New York, 2 NY3d 648, 651).

The Supreme Court correctly granted that branch of the McDonald's defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against McDonald's Corporation.   Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe condition” (Walsh v. Super Value, Inc., 76 AD3d 371, 375;  see Basso v. Miller, 40 N.Y.2d 233;  see also Peralta v. Henriquez, 100 N.Y.2d 139, 143–144).   However, an out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord “has a duty imposed by statute or assumed by contract or a course of conduct” (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 18;  see Rivera v. Nelson Realty, LLC, 7 NY3d 530, 534;  Chapman v. Silber, 97 N.Y.2d 9, 19–20;  Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642;  Ritto v. Goldberg, 27 N.Y.2d 887, 889).

The McDonald's defendants established, prima facie, that McDonald's Corporation was an out-of-possession landlord on the date of the subject accident, and that it had no duty to maintain or repair the leased premises where the accident occurred.   Therefore, the McDonald's defendants met their initial burden of establishing that McDonald's Corporation owed no duty to the plaintiff (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18–19;  Panico v. Jiffy Lube Intl., Inc., 86 AD3d 553;  Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 420).   In opposition, the plaintiff failed to raise a triable issue of fact.

Further, McDonald's Corporation was not liable based upon its status as a franchisor.   In determining whether a defendant, as a franchisor, may be held vicariously liable for the acts of its franchisee, the most significant factor is the degree of control that the franchisor maintains over the daily operations of the franchisee or, more specifically, the manner of performing the very work in the course of which the accident occurred (see Repeti v. McDonald's Corp., 49 AD3d 1089, 1090;  Hart v. Marriott Intl., 304 A.D.2d 1057, 1058;  Andreula v. Steinway Baraqafood Corp., 243 A.D.2d 596).   Here, the McDonald's defendants tendered sufficient evidence in support of their motion to establish, prima facie, that McDonald's Corporation lacked the requisite control over the alleged causes of the plaintiff's injuries.   The plaintiff failed to raise a triable issue of fact in opposition.

In addition, the Supreme Court correctly granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant McDonald's Restaurants of New York, Inc. Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property (see Mitchell v. Icolari, 108 AD3d 600, 601–602;  Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566).   The McDonald's defendants established, prima facie, that McDonald's Restaurants of New York, Inc., did not own, occupy, control, or have a special use of the subject property at the time of the accident and, thus, could not be held liable for injuries caused by the allegedly dangerous conditions (see Mitchell v. Icolari, 108 AD3d at 601–602;  Gover v Mastic Beach Prop. Owners Assn., 57 AD3d 729, 730).   In opposition, the plaintiff failed to raise a triable issue of fact.

RIVERA, J.P., HALL, AUSTIN and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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