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United States District Court, Southern District of New York

January 16, 2003


The opinion of the court was delivered by: John F. Keenan, United States District Judge



This action was commenced by the filing of a summons and complaint in the Supreme Court of the State of New York. Pursuant to Title 28 U.S.C. § 1441, 1446, defendants removed the action to this Court. Jurisdiction is predicated on diversity of citizenship, 28 U.S.C. § 1332. Now before the Court is a motion by the defendants for summary judgment.


This litigation is the result of a slip-and-fall accident that occurred on October 7, 1999. On that date, Plaintiff Efrain Torres ("Torres") was employed by Gray Line Air Shuttle ("Gray Line") as a bus driver. As a bus driver, Torres's primary responsibility was to transport guests of various hotels from the local New York City airports to their hotels in and around Manhattan and from the hotels to the airports. See Pl. Mem. Summ. J. Ex. 4 at 7-8.

On the date of the accident, Torres was summoned by a Gray Line dispatcher to pick up a copy of his route sheet for that evening at the Gray Line shuttle base located at 524 West 46th Street in Manhattan. See id. at 15-16. The building on 46th Street is owned by Dad's Partners, Inc. ("Dad's")*fn1 and comprised of two separate, and largely distinct, units: a large one-story garage and a four-story brownstone with office space. See Def. Mem. Summ. J. Ex. D at 11-12. On the day of the accident, the garage was leased by Defendant Hudson Transit Corporation ("Hudson")*fn2 and the brownstone was leased by Gray Line.*fn3 See id.

In order to retrieve his route sheet, Torres had to go to the second floor of the brownstone. After retrieving his route sheet and while descending the stairs within the Gray Line leased property, Torres slipped and fell. See Pl. Mem. Summ. J. Ex. 4 at 25. The fall was violent enough to cause Torres to lose consciousness temporarily and warrant the attention of paramedics. See id. at 42. According to Torres, when he regained consciousness his supervisor, Luis Sanson, was yelling at a Gray Line co-worker for not cleaning a grease-like substance on the stairs that Sanson had asked him to clean nearly an hour before the fall. See id. at 31-32. Torres claims the paramedic treating him on the stairs where he fell showed him that there was grease on the bottom of Torres's shoe. See id. at 42.

Torres claims to have sustained serious injuries as a result of his fall, and seeks to hold the defendants liable for having caused or created the dangerous condition. The defendants have moved for summary judgment.

Conclusions of Law

Standard of Review

This Court may grant summary judgment only if the moving party is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S. Fire Insur. Co., 804 F.2d 9, 11 (2d Cir. 1986). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11; see also First Fed. Sav. & Loan Ass'n, 869 F.2d at 103 (stating that to resolve a summary judgment motion properly, a court must conclude that there are no genuine issues of material fact, and that all inferences must be drawn in favor of the non-moving party)

The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. See id.; Silver, 947 F.2d at 1022.

The opposing party may not solely rely on its pleadings, on couclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present specific evidence supporting its contention that there is a genuine material issue of fact. See Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact," then summary judgment must be denied. Schering Corp. v. Home Insur. Co., 712 F.2d 4, 9-10 (2d Cir. 1983). The Court will analyze the instant motion in accordance with these principles.

Dad's as an Out-of-Possession Landlord

Dad's argues that its role with respect to the property at 524 West 46th Street was limited to that of an out-of-possession landlord. As such, Dad's claims, it was not responsible for the maintenance or repairs of the premises, and cannot be held liable for any failure to maintain or repair the premises. In support of its position, Dad's directs the Court's attention to Article 7 of the Agreement of Lease between Dad's and Gray Line for the premises located at 524 West 46th Street. Article 7 reads: "Tenant, at Tenant's sole cost and expense, shall take good care of the Premises and fixtures, equipment and appurtenances therein and make all repairs, replacements or alterations thereto of any nature whatsoever as and when needed to preserve them in good working order and condition . . . ." See Def. Mem. Summ. J. Ex. E.

Dad's did not maintain an office at 524 West 46th Street, and based upon the deposition testimony of Julius Eisen, a principal of Dad's, Dad's role with respect to the premises was very limited. According to Eisen, "We did nothing other than collect rent and, you know, get reimbursed. Maybe laid out an expense, but got reimbursed. They maintained it; they did everything." See Eisen Dep. Tr. 25. Based on the facts as stated, it is clear that Dad's was an out-of-possession landlord.

As jurisdiction in this case is premised on diversity of citizenship, 28 U.S.C. § 1332, the substantive law that must be applied to determine the extent of Dad's liability is that of the appropriate state — in this instance New York.*fn4 See Guar. Trust Co. v. York, 326 U.S. 99, 109-10, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Applying clearly established New York law, as an out-of-possession landlord, Dad's cannot be held liable for Torres's fall. "An out-of-possession landlord owes no duty to maintain and make repairs upon demised property unless he retains control over the property or is contractually obligated to perform such maintenance and repairs." D'Orlando v. Port Auth. of N.Y. & N.J., 250 A.D.2d 805, 805, 674 N.Y.S.2d 382, 382 (2d Dep't 1998); see also Donohue v. S.R.O. Café, Inc., 750 N.Y.S.2d 882, 883 (2d Dep't 2002) ("Generally an out-of-possession landlord cannot be held liable for injuries that occur on his premises unless the landlord has retained control over the premises, or over the operation of the business conducted on the premises."); Lopez v. 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 750 N.Y.S.2d 44, 45 (1st Dep't 2002) ("Generally, an out-of-possession landlord may not be held liable for a third-party's injury on his or her premises unless the landlord has notice of the defect and has consented to be responsible for maintenance and repair."). Dad's did not retain control over the property; was not contractually obligated to make repairs or maintain the premises; and lacked notice of the defect.

Hudson Transit

It is well-settled New York law that liability for a dangerous condition on property is predicated upon ownership, occupancy, control or special use of the property. See Palmer v. Prescott, 208 A.D.2d 1065, 617 N.Y.S.2d 411, 412 (N.Y. App. Div. 1994); Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724 (N.Y. App. Div. 1992). In this instance, Hudson did not own or control the property on which the slip-and-fall occurred. Although Hudson was a lessee of part of the building at 524 West 46th Street, its lease was restricted to the garage area and the driveway. Hudson was not a lessee of the staircase on which Torres fell. The staircase was located within the portion of the premises leased by Gray Line and within Gray Line's sole control. Thus, Hudson was not an occupant of the particular portion of the premises where the accident occurred. Furthermore, no evidence has been offered to suggest that Hudson was engaged in any type of special use of the property.

Finally, no evidence has been offered to suggest that Hudson created the dangerous condition or even knew of it. "To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition." Bradish v. Tank Tech Corp., 216 A.D.2d 505, 506, 628 N.Y.S.2d 807, 808 (2d Dep't 1995). Torres has failed to meet this burden.


For the reasons set forth above, the Court grants defendants' motion for summary judgment in its entirety. The Court orders this case closed and directs the Clerk of Court to remove it from the Court's active docket.


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