Brown v. BT-Newyo, LLCBrown v. BT-Newyo, LLC
McCarthy, J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered June 30, 2011 in Ulster County, which denied defendant‘s motion for summary judgment dismissing the complaint.
In February 2005, plaintiff allegedly slipped on a patch of ice in a parking lot owned by defendant. Defendant leased the premises to plaintiff‘s employer, United Parcel Service (hereinafter UPS), pursuant to a written lease agreement. Plaintiff commenced this action alleging, among other things, that defendant was negligent in failing to place gutters and snow stops on the roof of the building to prevent the accumulation of snow and ice, which would then melt off the roof onto the parking lot, where it would freeze and create a hazardous condition. Plaintiff asserted that defendant thereby violated the
Defendant, as an out-of-possession landlord, was not liable for plaintiff‘s injuries. Generally, “an out-of-possession landlord who relinquishes control of the premises is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises” (Brady v Cocozzo, 174 AD2d 814, 814 [1991]). Under an exception to that rule, “[a]n out-of-possession landlord who retains the right to reenter the leased premises for purposes of inspection or structural repair may be held liable for injuries to third parties only where the injuries arise from structural defects or a specific statutory violation” (Sauer v Mannino, 309 AD2d 1053, 1053-1054 [2003]; see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566 [1987]).1 “[O]nly a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord” (Velazquez v Tyler Graphics, 214 AD2d 489, 489 [1995]). Lack of gutters on the building did not constitute such a defect.
Defendant met its burden of establishing a prima facie entitlement to summary judgment. UPS management employees testified that UPS hired a company to plow snow and apply sand and salt on the premises when necessary. The owner of the plowing company testified regarding his duties and performance of them. A UPS manager testified that he recommended to UPS‘s plant engineering department that gutters be installed on the building because he was concerned that icicles forming on the edge of the roof could pose a danger.2 Defendant also submitted the expert affidavit of a licensed architect who averred that the absence of gutters on this type of building was typical, the building complied with all applicable building codes and it did not violate any statutory safety provisions.
In opposition, plaintiff failed to raise a triable issue of fact regarding whether defendant violated a specific statutory safety provision. Plaintiff submitted an expert affidavit of a licensed professional engineer who averred that, by failing to install gutters and snow stops, defendant left no proper means for snow and ice to drain away from the building, creating a hazardous condition in violation of
Finally, plaintiff may not rely on defendant‘s purported breach of the lease to defeat defendant‘s motion. The lease specifically provides that the rights and obligations therein are intended only for the benefit of defendant and UPS, not for any third parties. Thus, any alleged breach of the lease may not give rise to defendant‘s liability to plaintiff as a third-party beneficiary (see O‘Gorman v Gold Shield Sec. & Investigation, 221 AD2d 325, 326 [1995]).
Defendant‘s remaining contentions, to the extent that they are properly before us, have been reviewed and we find them unavailing.
Mercure, A.P.J., Lahtinen, Spain and Stein, JJ., concur.
Ordered that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.