In this action, the Court is asked to determine whether the funding of a program by the City of New York which is administered by a not-for profit agency gives rise to liability by the City when a program participant is injured at the project site which is leased by the not-for profit from a private landlord. The Court concludes that the City is not liable and grants it summary judgment.

The plaintiff Anthony Derienzo (Derienzo) was participating in a social service program run by the defendant Brooklyn Bureau of Community Service (BBCS) funded by the New York City Department of Health and Mental Hygiene (City). The program was conducted at BBCS's offices which it leased from the defendant Atlantic Vermont Holdings Corp. (AV Holding). Derienzo alleges in his complaint that on July 4, 2004 he fell on a hole in the ground in the basement at BBCS's office.

The City and AV Holding move for summary judgment dismissing the complaint and all cross claims. Alternatively, AV Holding moves for summary judgment against co-defendant BBCS for "breach of contract, common law and contractual indemnification".

With respect to the City's motion, it is undisputed that the City does not own or lease the premises. It is axiomatic that liability for a dangerous condition on property may only be imposed if it is predicated upon occupancy, ownership, control or special use of the property. (Marrone v South Shore Properties, 29 AD3d 961 [2d Dept 2006], Gibbs v Port Authority of New York, 17 AD3d 252 [1st Dept 2005], Jackson v Board of Education, 30 AD3d 57 [1st Dept 2006]. [*2]

Here there are no facts in the record which support a finding that the City owned occupied or made special use of the premises.

In opposition to the City's summary judgment motion, plaintiff and BBCS rely on a July 1, 2003 agreement between the City and BBCS to argue that the City exercised control over the subject premises. A review of the contract provisions indicates that the City had the right to exercise "general supervision and evaluation" of the services rendered under the contract as well as the " facilities maintained" by

BBCS. This general contract provision standing alone provides no support for the position that the City exercised "control" over the subject premises. The attorney's affirmation submitted in opposition to the City's motion is insufficient to raise triable issues of fact on the issue of control by the City of the premises. (Worldcom, Inc., v Dailing Loving Care, 269 AD2d 159 [1st Dept 2000]).

BBCS's also argues in this case in which BBCS became a party in 2005 that the City "has not yet been deposed to testify as to their supervision" of the facility. This argument is unpersuasive. All parties have had over three (3) years to take any allegedly necessarydiscovery and a claim that un-taken discovery might reveal triable issues is mere speculation. (Romeo v City of New York, 261 AD2d 379 [2d Dept 1999].)

In any event, even if the City owed a duty of care to plaintiff, it would still be entitled to summary judgment as the plaintiff has failed to show that the City had prior notice of the allegedly hazardous condition that caused the accident (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).

AV Holding's motion is denied in its entirety. An out of possession landowner may be held liable if the landlord maintains a contractual obligation to keep the premises in repair. (Putnam v Stout, 38 NY2d 607 [1976]).

Here the lease provision established that the land owner undertook such an obligation as well as the right to re-enter to make needed repairs. In addition, AV Holding's owner testified that his contractor had made repairs to the subject premises (see page 18 of transcript of the EBT of Marvin Kushnick).

With respect to notice, plaintiff testified that the owner visited the site, observed the defect and indicated it would be repaired.

With respect to the motion for summary judgment against BBCS, the motion is denied. Triable

issues exist as to whether the tenant (BBCS) or the landlord (AV Holding) was responsible for the repairs of the defective condition.

The Clerk of the Court is directed to enter judgment dismissing the complaint and all cross

claims as against the City of New York. [*3]

The case is transferred to a non-city part.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

February 18, 2009