JOAN A. MADDEN, J.
In this personal injury action, defendants Costco Wholesale Corporation ("Costco") and R.M. Resources ("RMR") move, and defendants Scott Rechler, Ruland-110 Associates, L.P., M.S. Venture Corp., Better Ruland Road Associates, L.P., Best Ruland, Inc., Gregg Rechler, Reckson Associates Realty Corp. and Rechler Equity Partners LLC (together "the cross movants") cross move, for summary judgment dismissing the complaint against them. Plaintiff opposes the motion and the cross motion, except insofar as she concedes that her claims against her employer, Costco, are barred by the Workers' Compensation Law.
This action arises out of a "slip and fall" incident that occurred on February 16, 2009, when plaintiff, while employed by Costco, fell on a patch of ice on the sidewalk outside the Costco Warehouse in Melville, New York ("the property"), on her way to work. Two photographs of the accident area shows two pipes embedded in an asphalt sidewalk on the side of the Costco store, and a damaged sidewalk area surrounding the pipe. RMR owns the property which it leased to Costco. The cross movants own various interests in RMR
Pursuant to a lease agreement dated February 17, 1994 ("the Lease"), a copy of which is attached to the moving papers, Costco, as tenant, agreed "to construct the [P]roject as a retail and wholesale warehouse together with parking and other facilities." Section 5.01. In addition, Costco agreed that "at its sole costs and expense [to]...take good care of [the property] [and to] keep and maintain the same in good and safe order and condition, and make all repairs therein and thereon, interior and exterior, structural and non-structural, ordinary and extraordinary, and unforeseen and foreseen, necessary to keep the same in good and safe order and condition, howsoever the necessity or desirability therefor may occur, and whether or not necessitated by wear and tear, obsolescence or defects, latent or otherwise." Section 5.08. In addition, Costco agreed, under section 5.08.1 "at its own cost and expense keep [the property] clean and free of dirt, snow, ice, rubbish, and obstructions." RMR reserved the right, upon reasonable notice to Costco, to inspect the property. Section 11.01.
On January 18, 2012, plaintiff moved by order to show cause for the immediate deposition of a witness from Costco, asserting that without such deposition plaintiff would be unable to identify a witness against which she had a cause of action, indicating in her order to show cause that RMR is an out-of-possession owner. In its interim order dated January 28, 2012, the court directed that the general manager of the Costco store where plaintiff was employed be deposed and directed Costco to produce any documents in its possession with respect to any "construction work, maintenance or repair of the area where plaintiff fell for three years prior and six months subsequent to the date of the accident."
In compliance with the order, Costco produced for deposition its general manager, Michael Bartoldus, who began working at the property in May 2006. Mr. Bartoldus testified that he "couldn't figure out why there was ice on the concrete where [plaintiff] fell...." Bartoldus dep. at 12. Mr. Bartoldus testified that upon reviewing photographs of the area where plaintiff fell that the pipes in the photograph were irrigation and electrical pipes. He explained the irrigation pipe was used to irrigate the landscape,  and that the electrical pipe was used for a camera on the wall. When asked if any one other than Costco used these pipes he responded no. Mr. Bartoldus also did not know who put the pipes there. However, he testified that Costco was responsible for maintaining the pipes at the time of the accident, and that he was not aware of anyone or any entity other than Costco that did work in the area where plaintiff fell. In addition, he testified that a search for the records from 2005 until August 2009 did not reveal any construction, repair or maintenance records for the area. He also denied that he ever had any dealings with RMR and testified that he was not aware of anyone from RMR doing any repairs on the property.
RMR argues that as an out-of-possession owner, it cannot be held liable to plaintiff since, under the Lease, Costco agreed to be responsible for maintenance and repair of the property. RMR also notes that Mr. Bartoldus testified that Costco was solely responsible for maintaining the property, including the sidewalk and pipes at issue.
With respect to the cross motion, the cross movants argue that they had no connection to the property at the time of the accident, and that there is no basis upon which they can be held liable as they did not have any ownership interest in or direct connection to the property upon which the accident occurred. The cross movants rely on the affidavit of Benjamin Zimmerman, in which he states that he is the comptroller/controller of defendants RMR and Rechler Equity Partners. According to Mr. Zimmerman, RMR, which is one of the moving parties rather than the cross moving parties, was formed with the single purpose of owning the land entitlement to construct the Costco at issue and is the owner of the property. He states that RMR did not maintain custody or control of the property or contribute to the property's day-to-day operations. He also states that at the time of plaintiff s fall, defendant Ruland-110 Associates L.P. owned 25% of RMR and had invested in RMR for the sole purpose of building the subject Costco, and that MS Ventures, which had no connection to the property, owns Ruland-110 Associates L.P. He states that defendant Better Ruland Road Associates L.P. owned 75% of RMR and, while it had such an ownership interest, had no involvement at the property in issue. He further states that defendant Gregg Rechler was a 25% investor in Better Ruland Inc., which was a general partner in Better Ruland Road Associates, but did not have any involvement in the property., Additionally, Mr. Zimmerman maintains that "[t]here is no such entity as R.M. Resources, Inc." Zimmerman Aff. at ¶.
In opposition, plaintiff argues that RMR and the cross movants are potentially liable to her despite their status as out-of-possession landlords, based on the provision of the Lease granting RMR the right to inspect the property upon reasonable notice to Costco, if it had actual or constructive notice of a dangerous condition. Plaintiff also argues that there are triable issues of fact as to whether RMR created or constructed an instrumentality, such as the irrigation pipe and electrical pipes or the pavement upon which plaintiff fell, which caused or contributed to the plaintiffs injuries. Alternatively, plaintiff argues that the motion is premature as she has not had an opportunity to obtain the depositions of any of the parties, except for Costco, and that Costco's representative was unable to identify the contractor(s) that installed the pipes at issue and/or removed portion of the walkway where she fell, and he did not have relevant repair records for the area.
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital 68 N.Y.2d 320, 324 (1986).
"An out-of-possession landlord is generally not liable for the condition of the demised premises unless the landlord has a contractual obligation to maintain the premises, or right to reenter in order to inspect or repair, and the defective condition is 'a significant structural or design defect that is contrary to a specific statutory safety provision.'" Ross v. Betty G. Reader Revocable Trust. 86 A.D.3d 419, 420 (1st Dept 2011), quoting Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440 (1st Dept 2010). Here, RMR and the cross movants have made a prima facie showing entitling them to summary judgment based on the Lease and the testimony of Costco's general manager ...