SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
December 16, 2008
ROCCO GIANNATTASIO, APPELLANT,
HAN SUK KANG, ET AL., RESPONDENTS, ET AL., DEFENDANT.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Ambrosio, J.), dated March 6, 2007, which, upon the granting of the motion of the defendant New York City Off-Track Betting Corporation pursuant to CPLR 4401 for judgment as a matter of law, made at the close of evidence, and upon a jury verdict on the issue of liability in favor of the defendant Han Suk Kang and against him, is in favor of the defendants Han Suk Kang and New York City Off-Track Betting Corporation and against him dismissing the complaint insofar as asserted against those defendants.
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.
STEVEN W. FISHER, J.P., RUTH C. BALKIN, WILLIAM E. McCARTHY and JOHN M. LEVENTHAL, JJ.
(Index No. 38610/01)
DECISION & ORDER
ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendant New York City Off-Track Betting Corporation; as so modified, the judgment is affirmed, the motion of the defendant New York City Off-Track Betting Corporation pursuant to CPLR 4401 for judgment as a matter of law is denied, the complaint is reinstated against that defendant, the matter is remitted to the Supreme Court, Kings County, for a new trial against that defendant on the issue of liability for the alleged defective slope and on the issue of damages, if necessary, with costs to abide the event, and one bill of costs is awarded to the defendant Han Suk Kang payable by the plaintiff.
Contrary to the plaintiff's contentions, the trial court properly interpreted the decisions of this Court in Giannattasio v Han Suk Kang (30 AD3d 374), and Giannattasio v Han Suk Kang (30 AD3d 375), and limited the evidence at retrial to the plaintiff's claims regarding the alleged defective slope.
The trial court erred, however, in granting the motion of the defendant New York City Off-Track Betting Corporation (hereinafter OTB) pursuant to CPLR 4401 for judgment as a matter of law. "'A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party . . . In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the non-movant'" (Robinson v 211-11 N., LLC, 46 AD3d 657, 658, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). While it was proper for the trial court to interpret the unambiguous lease dated September 1, 2000, as a matter of law (see Teitelbaum Holdings v Gold, 48 NY2d 51, 56; Sumitomo Bank of N.Y. Trust Co. v Town of N. Hempstead, 278 AD2d 402, 403), the lease does not in and of itself absolve OTB of potential liability for the alleged defective slope. "'[A] tenant may be held liable for negligently allowing the leased premises to become dangerous, and such potential for liability exists independently of the terms of the lease'" (Langer v Orenstein, 295 AD2d 574, 575, quoting Seifert v Arlona Co., 205 AD2d 679, 680; see Cohen v Central Parking Sys., 303 AD2d 353, 354). Accordingly, the trial court should have submitted the issue of OTB's liability for the alleged defective slope to the jury.
The plaintiff's remaining contentions are without merit.
FISHER, J.P., BALKIN, McCARTHY and LEVENTHAL, JJ., concur.
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