The following papers numbered 1 to 6 read on the below motion noticed on April 13, 2015 and duly submitted on the Part IA15 Motion calendar of January 16, 2018:Papers Submitted NumberedDefendants’ Notice of Motion,, Exhibits 1,2Pl.’s Aff. In Opp., 3PWP’s Cross-Motion, Exhibits 4, 5PWP’s Aff. In Opp. 6DECISION/ORDERUpon the foregoing papers, the defendants Webster Holding Co., LLC. (“Webster”) and Chatam Management Co., Inc. (“Chatam”) move for summary judgment, dismissing the complaint of the plaintiff Edna Ynoa, as Administratrix of the Estate of Maria Antonia Pichardo Reyna, a/k/a Maria Antonia Ynoa (“Plaintiff”), and any cross-claims, pursuant to CPLR 3212. Plaintiff and co-defendant PWP Equities Corp. (“PWP”) oppose the motion. Co-defendant PWP also cross-moved for a stay of this matter due to the death of plaintiff, and for an extension of time within which to submit dispositive motions once an administrator was appointed. The cross-motion is denied as moot because this motion was held in abeyance until the administrator was appointed and substituted for plaintiff. The time to make dispositive motions remains within sixty (60) days after the note of issue is filed.To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 A.D.3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire’s Hospital, 82 N.Y.2d 738 [1993]).Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition (see Peralta v. Henriquez, 100 N.Y.2d 139 [2003]). This duty, however, is premised on the landowner’s exercise of control over the property, since the entity in control of the property is in the best position to identify and prevent harm to others (Butler v. Rafferty, 100 N.Y.2d 265 [2003]). Therefore, a landowner who transfers possession and control is generally not liable for injuries caused by dangerous conditions on the property (Chapman v. Silber, 97 N.Y.2d 9 [2001]). Exceptions to this general rule apply when the landlord is either contractually obligated to maintain the premises or has a contractual right to re-enter, inspect, and make repairs at the tenants expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision (see Johnson v. Urena Service Center, 227 A.D.2d 325 [1st Dept. 1996]; Heim v. Trustees of Columbia Univ., 81 A.D.3d 507 [1st Dept. 2011]).In this case, owner of the premises Webster and its managing agent Chatam have established their prima facie entitlement to judgment as a matter of law. Webster demonstrated that it is an out of possession landowner who had no contractual obligation to maintain the property (see Reyes v. Morton William Assoc. 50 A.D.3d 496 [1st Dept. 2008]; see also Jean-Baptiste v. 153 Manhattan Ave. Housing Dev. Fund Corp., 124 A.D.3d 476 [1st Dept. 2015]). Webster satisfied its initial burden by submitting a copy of the subject lease agreement wherein tenant PWP, the owner and operator of the supermarket, agreed to keep the premises clean and in good order and assumed full responsibility for the condition, operation, repair, replacement, and maintenance of the premises (see Lease at Par. 30; Rider at Par. 41[c][3]) (see Nielsen v. 300 East 76th Street Partners, LLC., 111 A.D.3d 414, 414 [1st Dept. 2013][defendant demonstrated out of possession status by submitting copy of the lease], citing Devlin v. Blaggards III Rest. Corp., 80 A.D.3d 497 [1st Dept. 2011], lv. den., 16 N.Y.3d 713 [2011]). Webster also submitted an affidavit from its managing member Ram Gupta who confirmed that PWP was solely responsible formaintaining the premises and that Webster had no responsibility for spillages or clean-up of interior aisles of the supermarket, which was operated and controlled by PWP. The foregoing established prima facie that Webster relinquished control of the subject premises and thus it did not create the allegedly hazardous condition that allegedly existed on the supermarket floor (see Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 A.D.3d 525, 527 [1st Dept. 2017]; Marchese v. Fresh Meadows Assoc., 207 A.D.2d 871 [2nd Dept. 1994]).Webster also demonstrated that neither of the exceptions to the out-of-possession landlord doctrine apply. The lease clearly established that Webster had no contractual obligation to maintain the supermarket aisles or interior. While Webster retained the right to re-enter the premises, it could only be held liable for failing to maintain the premises if the “defect that caused the injuries was a significant structural or design defect that was contrary to a specific statutory safety provision” (Devlin v. Blaggards III Rest. Corp., supra., 80 A.D.3d at 497-98 [internal citation omitted]). The alleged defect at issue here — a broken egg on the supermarket aisle floor — does not constitute such a defect (see, e.g., Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 A.D.3d at 528 [wet condition on stairs not a structural or design defect that violated specific safety provision]; see also Devlin v. Blaggards III Rest. Corp., supra. [wet bathroom floor caused by leaking air conditioner vent not significant structural or design defect that violated specific safety provision]; Figueroa v. Skillman Realty Co., 154 A.D.3d 470 [1st Dept. 2017]). Because Webster established that it was an out-of-possession landlord, and the defect was not structural in nature, whether Webster had notice of the defective condition is immaterial to the issue of its liability (see Nielsen v. 300 E. 76th St. Partners, supra, 111 A.D.3d at 415, citing Devlin, 80 A.D.3d at 497-98]; See also Podel v. Glimmer Five LLC., 117 A.D.3d 579 [1st Dept. 2014]). Defendant Chatam established its entitlement to summary judgment by relying on the subject lease agreement and an affidavit from its vice president Anita Gupta, who averred that Chatam had no possessory interest in the premises and has absolutely no day-to-day responsibilities for the management of the supermarket or its interior. The foregoing sufficiently established that Chatam owed Plaintiff no duty of care and thus shifted the burden to Plaintiff to raise an issue of fact (see, e.g., Santos v. 786 Flatbush Food Corp., 89 A.D.3d 828 [2nd Dept. 2011]).In opposition to the motion, Plaintiff and PWP have failed to raise a triable issue of fact. Contrary to Plaintiff’s contentions, Webster’s right to re-enter the premises is not relevant to the issue of its liability. As noted supra, while the lease at issue provided Webster with the right to re-enter the premises, the alleged defect — a broken egg on the floor — was not a significant structural or design defect that violated a specific safety provision. Thus, evidence regarding, e.g., whether the defendants had notice of this condition in the aisle would be irrelevant. (See Sapp, 150 A.D.3d at 528).Plaintiff asserts that she should not have to rely on the affidavits from Defendants’ representatives and she contends that their depositions have not yet occurred and thus summary judgment is premature. Under CPLR 3212(f), “[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion.” A plaintiff alleging that a motion is premature for want of discovery must demonstrate that the needed proof is in the exclusive knowledge of the moving party, that the claims in opposition are supported by more than mere hope or conjecture, and that the party has at least made some attempt to discover facts at variance with the moving party’s proof (see Voluto Ventures LLC. v. Jenkens, Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557 [1st Dept. 2007][internal citations omitted]). A plaintiff’s “hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery [is] an insufficient basis for denying the motion” (see Brewster v. Five Towns Health Care Realty Corp., 59 A.D.3d 483, 484 [2nd Dept. 2009] [internal quotation omitted]).In this case, Plaintiff has failed to set forth a nonspeculative basis for her contention that discovery would lead to relevant evidence, and she also failed to explain what efforts she undertook to discover facts at variance with Defendants’ proofs before this action was stayed. This matter was commenced in 2013. The parties entered into a preliminary conference order and a compliance conference order detailing a discovery schedule and deadlines prior to Plaintiff’s death and several months before Defendants made this motion. Plaintiff has failed to explain what efforts she made to secure Defendants’ depositions or any other documentary evidence to contradict Defendants’ showing prior to the date this motion was made. For the foregoing reasons, and because Plaintiff has failed to demonstrate that her need for discovery is supported by something other than mere hope or conjecture, Plaintiff cannot avail herself of CPLR 3212(f) (see Garcia-Rosales v. 370 Seventh Ave. Assoc., LLC., 88 A.D.3d 464, 465 [1st Dept. 2011]; Voluto Ventures LLC. v. Jenkens, Gilchrist Parker Chapin LLP, 44 A.D.3d 557).Plaintiff’s Labor Law claims are dismissed, as Plaintiff concedes that those claims were made in error.Accordingly, it is herebyORDERED, that Webster and Chatam’s motion for summary judgment is granted, and Plaintiff’s complaint and any cross-claims asserted against the moving defendants are dismissed with prejudice, and it is further,ORDERED, that Plaintiff’s Labor Law claims are dismissed, and it is further,ORDERED, that PWP’s cross-motion is denied as moot.This constitutes the Decision and Order of this Court.Dated: May 29, 2018
