Seawright v Port Auth. of N.Y. & N.J.

Seawright v Port Auth. of N.Y. & N.J. 2011 NY Slip Op 09617 Decided on December 27, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RANDALL T. ENG
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2010-10976
(Index No. 679/10)

[*1]Joseph L. Seawright, respondent,

v

Port Authority of New York and New Jersey, et al., appellants.




Raven & Kolbe, LLP, New York, N.Y. (George S. Kolbe of
counsel), for appellant Port Authority of New York and New Jersey.
Greenberg & Wolff, PLLC, Merrick, N.Y. (Adrianne S.
Greenberg of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Port Authority of New York and New Jersey appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Markey, J.), dated September 27, 2010, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendant La Guardia Airport also appeals from the same order.

ORDERED that the appeal by the defendant La Guardia Airport is dismissed as abandoned (see 22 NYCRR 670.8[c], [e]), and on the additional ground that it is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from by the defendant Port Authority of New York and New Jersey, on the law, and that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendant Port Authority of New York and New Jersey payable by the plaintiff.

The plaintiff, who was employed by nonparty US Airways as a ramp agent, allegedly slipped and fell on snow and ice during the course of his employment on a US Airways ramp. US Airways leased its premises from the defendant Port Authority of New York and New Jersey (hereinafter the defendant). The lease provided that US Airways had exclusive possession and control of the premises and was responsible for maintenance and repairs. The defendant retained the right to enter the premises and to make repairs at US Airways' expense in the event US Airways failed to fulfill its obligations.

Liability may be imposed on an out-of-possession landlord for injuries which occur on leased premises only where "an out-of-possession 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). Here, where the complaint sounds in common-law negligence and does not allege the [*2]violation of a statute, the defendant established, prima facie, that it was an out-of-possession landlord which had no duty to remove snow and ice from the subject premises (see Santos v 786 Flatbush Food Corp., 89 AD3d 828; Thompson v Port Auth. of N.Y. & N.J., 305 AD2d 581; D'Orlando v Port Auth. of NY & NJ, 250 AD2d 805; Stark v Port Auth. of N.Y. & N.J., 224 AD2d 681). In opposition, the plaintiff failed to raise a triable issue of fact. Moreover, that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it was not premature, since the plaintiff failed to demonstrate that additional discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendant (see Martinez v Kreychmar, 84 AD3d 1037; Davis v Rochdale Vil., Inc., 83 AD3d 991; Deleg v Vinci, 82 AD3d 1146; Rainford v Sung S. Han, 18 AD3d 638). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760).
DILLON, J.P., ENG, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court