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Pulliam v. Deans Management of N.Y.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 16, 2009

WHITNEY PULLIAM, ET AL., PLAINTIFFS-APPELLANTS,
v.
DEANS MANAGEMENT OF N.Y., INC., DEFENDANT-RESPONDENT,
PATRICIA CORRERA, DEFENDANT.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered October 31, 2007, which, in an action for personal injuries, granted the motion of defendant Deans Management of N.Y., Inc. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

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.

Gonzalez, P.J., Nardelli, Catterson, Moskowitz, Renwick, JJ.

116039/04

Defendant established its prima facie entitlement to summary judgment by submitting evidence demonstrating that as an out-of-possession owner with no contractual obligation to repair, it is not liable for the injured plaintiff's injury. In opposition, plaintiffs failed to raise a triable issue of fact, as they did not allege or submit evidence that the defective condition resulting in the accident constituted a specific statutory safety violation (see Nieves v Burnside Assoc., AD3d , 2009 NY Slip Op 1330 [1st Dept 2009]; Vasquez v The Rector, 40 AD3d 265, 266 [2007]; Velazquez v Tyler Graphics, 214 AD2d 489, 490 [1995]).

Nor may plaintiffs succeed on the claim that defendant is liable based on its non-delegable duty to members of the general public to keep their premises safe, where its premises are open to the public (see e.g. Thomassen v J & K Diner, 152 AD2d 421, 424 [1989], appeal dismissed 76 NY2d 771 [1990]), since the injured plaintiff was injured in an area of the premises that was not open to the general public (see Parsons v City of New York, 195 AD2d 282, 284 [1993]).

Plaintiffs' claim that a triable issue exists with regard to defendant's lease obligations is unpreserved as it is raised for the first time on appeal. Plaintiffs' failure to raise this issue when defendant moved for summary judgment precluded defendant from including in its reply papers the documentary evidence plaintiffs assert is missing (see 815 Park Ave. Owners v Fireman's Ins. Co. of Washington, D.C., 225 AD2d 350, 355 [1996], lv denied 88 NY2d 808 [1996]).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090416

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