Brewster v. Five Towns Health Care Realty Corp.Brewster v. Five Towns Health Care Realty Corp.
CHRISTINE BISHOP, Appellant, v LAURIE MARSH et al., Respondents. [873 NYS2d 201]—
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 2, 2007, which granted the defendants’ motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the parties which established the absence of evidence of a defective or dangerous condition (see Puma v New York City Tr. Auth., 55 AD3d 585 [2008]; DeSantis v Lessing’s, Inc., 46 AD3d 742 [2007]; Golba v City of New York, 27 AD3d 524 [2006]; Przybyszewski v Wonder Works Constr., 303 AD2d 482 [2003]). In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to the existence of a dangerous or defective condition (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Although the plaintiff alleged that the lighting at the location of her fall was inadequate at the time of the incident, she neither testified at her deposition nor stated in her affidavit submitted in opposition to the summary judgment motion that she tripped as a result of inadequate illumination (see DiGeorgio v Morotta, 47 AD3d 752, 752-753 [2008]; Leib v Silo Rest., Inc., 26 AD3d 359, 360 [2006]; Curran v Esposito, 308 AD2d 428, 429 [2003]). Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Spolzino, J.P., Santucci, Leventhal and Chambers, JJ., concur.
BESSIE BREWSTER, Appellant, v FIVE TOWNS HEALTH CARE REALTY CORP. et al., Respondents, et al., Defendants. [873 NYS2d 199]—
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), entered October 25, 2007, which granted the motion of the defendants Five Towns Health Care Realty Corp., Herbert Feldman, Louis E. Sedrish exempt marital trust under will dated December 10, 1985, as to a 26.83% undivided interest, Louis Sedrish Trust for the benefit of the issue of Paul Sedrish as to a 23% undivided interest, and Louis B. Sedrish Credit Shelter Trust under will dated December 10, 1985, as to a 50.17% undivided interest, all tenants in common care of Michael B. Sedrish, 38 The Oaks, Roslyn Estates, New York 11576, for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff alleges that while working as a maintenance worker at the nonparty Woodmere Rehabilitation and Health Care Center, Inc., she slipped and fell on debris adjacent to a dumpster on the grounds of the facility. The Supreme Court granted the respondents’ motion for summary judgment dismissing the complaint insofar as asserted against them.
An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises or is contractually obligated to perform maintenance and repairs (see Tragale v 485 Kings Corp., 39 AD3d 626 [2007]; Rhian v PABR Assoc., LLC, 38 AD3d 637 [2007]; Lowe-Barrett v City of New York, 28 AD3d 721 [2006]). Reservation of a right to enter the premises for the purposes of inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition, but only where the condition violates a specific statutory provision (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]). In support of their motion for summary judgment, the respondents satisfied their burden by submitting documentary evidence demonstrating that they were out-of-possession landlords that were not contractually obligated to maintain or repair the premises. In opposition, the plaintiff failed to raise a triable issue of fact (see