The following papers read on this motion:

Notice of Motion, Affirmation, and ExhibitsX

Notice of Cross-Motion, Affirmation and Exhibits

by Defendants, MARTINX

Notice of Motion, Affirmation, and Exhibits

by Defendants FIRST IMPRESSIONS LITHOGRAPHIC, INC.X

Notice of Motion, Affirmation, and Exhibits by

Defendants, SIMONE DEVELOPMENT, LLC and ADAMS [*2]

FAIRCHILD REALTY, LLCX

Affirmation in Opposition and ExhibitsX

Affirmation in OppositionX

Reply Affirmation to PlaintiffX

Reply AffirmationX

Reply AffirmationX

Reply Affirmation to Defendant FIRST IMPRESSIONSX

Defendant, FIRST IMPRESSIONS' Reply AffirmationX

This motion by the defendants Hotshots East Gymnastics, Inc., Hotshots West Gymnastics, Inc., and Michael Venezia for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted as provided herein.

This cross-motion by the defendants Leah Martin and Scott Martin for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint and all cross-claims against them is granted.

This cross-motion by the defendant First Impressions Lithographic Co., Inc., for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint against it is denied.

This motion by the defendants Adams Fairchild Realty, LLC and Simone Development Company, Inc., for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted.

The plaintiffs in this action seek to recover, inter alia, damages for personal injuries the plaintiff Jeffrey Panariello allegedly sustained on March 17, 2007 at approximately 4:00 PM when he got hurt while trying to assist the defendant Leah Martin with freeing her 2005 Honda Odyssey from a snow covered parking space in the parking lot at Hotshots. The property was previously owned by the defendant Simone Development Company, LLC and owned at the time in question by the defendant Adams Fairchild Realty, LLC. It was leased to the defendant First Impressions Lithographic Co., Inc. and First Impressions subleased 10,600 square feet of the building to Hotshots. Defendant Venezia is a partner and officer of Hotshots. While Hotshots' sublease did not include any part of the outside property, Venezia put up a sign on the west side of the parking lot which read "Parking for Hotshots and Jan Martin's Dance Company" with First Impressions Lithographic's' permission.

First Impressions sublease with Hotshots provided:

Underlying Lease. "The Sublessee will and hereby does indemnify and hold Sublessor harmless from and against any and all actions, claims, demands, damages, liabilities and expenses asserted against, imposed upon or incurred by Sublessor by reason of (a) any violation caused, suffered or permitted by Sublessee, its agents, servants, employees or invitees, of any of the terms, covenants or conditions of the Underlying Lease and (b) any damage or injury to persons or property occurring upon or in connection with the use or occupancy of the Subleased Premises." [*3]

It also provided:

Indemnification. "Sublessee agrees to indemnify and hold Sublessor harmless from and against any liability, loss, damage, cost, penalty or expense of any kind whatsoever arising out of the business of Sublessee or the use of the Subleased premises by Sublessee.

Finally, it required the "Sublessee, at its sole cost and expense, [to] provide and maintain comprehensive public liability and property damage insurance coverage [and to name] the Sublessor and Underlying Landlord. . . as additional insureds under all such policies . . .' "

It is not disputed that on the day of the plaintiff's accident, it had snowed recently, most likely the day before, but it was sunny that day. Some witnesses testified at their examination-before-trials that it appeared that only a path had been plowed down the middle of the parking lot: The parking spaces themselves appeared not to have been plowed, leaving somewhere between one to two or five to six inches of snow and some ice in the lot, and according to the plaintiff, a one foot berm where the plowed snow bordered the parking spaces. Venezia, however, did not recall seeing an accumulation of snow or ice in the parking lot in the morning on the day in question.

Both Mr. Panariello and the defendant Leah Martin were at Hotshots for children's birthday parties. When no one from Hotshots appeared to be available to help Ms. Martin free her car which was stuck in snow in the parking lot, Mr. Panariello and two other gentlemen ultimately agreed to assist her. Mr. Panariello and another gentlemen tried to rock the car by pushing it from the front and back and when that failed, the other gentlemen left and Mr. Panariello persisted. He continued to push the car from the front as well as the back with Ms. Martin at the wheel. At his examination-before-trial, Mr. Panariello testified that as he was pushing the car from the rear, when it veered to the right, the brake lights came on and he felt a "pop" in his leg. He testified that he felt his feet go from asphalt to snow and that he slipped and slid a few inches to a foot but he did not fall. When Mr. Panariello told Ms. Martin what had happened, their efforts ceased and they went back inside Hotshots. Mr. Panariello declined Ms. Martin's offer to call the police and neither of them made any complaints to Hotshots regarding the parking lot or Mr. Panariello's injury. At her examination-before-trial, Ms. Martin testified that Mr. Panariello assured her that he was okay and that it was okay for her to leave.

Pursuant to their lease, the defendant Adams Fairchild Realty, LLC, was responsible for repairs to the premises and the parking lot. However, First Impressions was responsible for keeping the exterior of the premises clean, free of debris, snow and ice and cutting the grass and trimming the bushes. Under First Impressions' sublease with Hotshots, First Impressions Lithographic's responsibility for landscaping, snow and ice removal, repairs to the HVAC system, water and insurance continued, while, Hotshots was obligated to pay approximately one-third of the costs associated therewith. Hotshots would pay its portion of the bill for snow and ice removal at the end of the winter season. At his examination-before-trial, Venezia testified that he recalled being told that First Impressions Lithographic would be responsible for snow removal [*4]especially on weekends when Hotshots had a lot of parties and especially in the parking lot. Venezia did not recall First Impressions Lithographic ever telling him that Hotshots was responsible for snow removal.

Eric Mejias, an employee of William Weinstein Realty which managed the property for Simone Development Company and then Adams Fairchild Realty, testified at his examination-before-trial that the lessee First Impressions Lithographic was responsible for maintaining the parking lot including snow removal. He never observed snow in the parking lot during his quarterly inspections but he recalled receiving complaints from Hotshots regarding the parking lot whereupon he advised Hotshots to contact its landlord, First Impressions Lithographic..

First Impressions vacated the premises in August 2006 due to its business closing. However, Victor Triolo, President of First Impressions, admitted at his examination-before trial that all of its responsibilities relating to the property continued until it was released from its lease obligations in or around July, 2007.Triolo admitted that First Impressions resurfaced the driveway at the landlord's request and that they continued to maintain the building, including having the grass mowed. He further admitted that when First Impressions notified Hotshots that it was leaving in August, 2006, it did not indicate to Hotshots that its departure changed any of its duties or obligations under the lease regarding the property. Nevertheless, he testified that First Impressions was no longer providing snow and ice removal services because it was no longer in the building. However, he was not sure whether First Impressions so notified Hotshots. He testified that "it was understood that it was Hotshots' responsibility." He further testified that First Impressions in fact did not provide snow and ice removal services once it vacated the premises. Nevertheless, during that period, they inspected the property monthly and kept the heat and lights as well as the security system operational. Most importantly, despite having vacated the premises, First Impressions contracted in writing with G.T. Landscaping on December 17, 2006 for snow removal in the parking lot during the winter of 2006-2007.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent 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." Sheppard-Mobley v King, 10 AD3d 70, 74 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v Community Housing Management Corp., 34 AD3d 518, 521 (2d Dept. 2006), citing Secof v Greens Condominium, 158 AD2d 591 (2d Dept. 1990).

"Where the acts of a third party intervene between the defendant's conduct and the plaintiff's injury, the casual connection is not automatically severed. In such a case, [*5]liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315 (1980), citing Parvi v City of Kingston, 41 NY2d 553 (1977); Restatement, Torts 2d § 443, 449; Prosser, Law of Torts § 44. "If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the casual nexus." Derdiarian v Felix Contracting Corp. supra at p. 315, citing Martinez v Lazaroff, 48 NY2d 819, 820 (1979); Ventricelli v Kinney System Rent a Car, 45 NY2d 950, 952 (1978); Rivera v City of New York, 11 NY2d 856 (1962).

"Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues are for the fact finder to resolve." (Derdiarian v Felix Contr. Corp., supra, at p. 315; see also, Kriz v Schum, 75 NY2d 25, 34 (1989); Lynch v Bay Ridge Obstetrical & Gynecological Associates, P.C., 72 NY2d 632, 636 (1988). Under the circumstances of this case, it cannot be concluded as a matter of law that the plaintiff's action in assisting Ms. Martin with freeing her car from the snow covered lot was unforeseeable or of such character as to sever the connection between the defendants' alleged negligence in failing to maintain the parking lot and Mr. Panariello's injuries. See, Mazzio v Highland Homeowners Ass'n and Condos, 63 AD3d 1015 (2nd Dept. 2009); Gomez v Hicks, 33 AD3d 856 (2nd Dept. 2006).

"As a general rule, liability for permitting a dangerous condition to remain on real property is predicated upon ownership, occupancy, control or special use of the property (citations omitted)." Marrone v South Shore Properties, 29 AD3d 961, 963 (2nd Dept. 2006). Furthermore, "[a]n out-of-possession landlord is generally not responsible for injuries that occur on its premises unless it has retained control over the premises or is contractually obligated to maintain or repair the alleged hazard (citations omitted)." Deerr'Matos v Ulysses Upp, LLC, 52 AD3d 645 (2nd Dept. 2008). " Reservation of the right to enter the premises for the purpose of inspection and repair may constitute sufficient retention of control to permit a find that the landlord had constructive notice of a defective condition provided a specific statutory violation exists and there is a significant structural or design defect' that proximately caused the plaintiff's injuries." Hernandez v Seven Fried Food, 292 AD2d 343 (2nd Dept. 2002), quoting Stark v Port Authority of New York and New Jersey, 224 AD2d 681, 682 (2nd Dept. 1996).

The defendant Simone Development has established that it did not own, control, manage or make a special use of the property in question at the time of Panariello's accident. Its motion for summary judgment has not been opposed. The complaint against Simone Development Corp. is dismissed.

Adams Fairchild Realty has established that it completely relinquished control of the property and that it was not responsible for the condition which gave rise to Panariello's accident, i.e., snow removal, thereby shifting the burden to the plaintiff to establish the existence of a material issue of fact. Couluris v Harbor Boat Realty, Inc., 31 AD3d 686, 687 (2nd Dept. 2006). The plaintiffs have failed to meet that burden. Succinctly stated, quarterly checks of the property by the management company do not [*6]suffice to raise an issue of fact as to whether the landlord retained control of the property. And, there is no basis for imposing liability on Adams Fairchild Realty premised upon its retention of the right to re-enter. The complaint against Adams Fairchild Realty, LLC is also dismissed.

The defendant Hotshots has established its entitlement to summary judgment dismissing the complaint against it as it has established that it did not have any responsibility for the parking lot. It did not own or control it nor did it make a special use of it. The defendant First Impressions attempt to establish an issue of fact as to Hotshots' possible responsibility for the parking lot fails. Such a responsibility is clearly refuted by the evidence including First Impressions' lease with Adams Fairchild, First Impressions' sublease with Hotshots, First Impressions' contract with G.T. Landscaping and the parties' testimony at their examination-before-trial. Quick v G.G.'s Pizza & Pasta, Inc., 53 AD3d 535 (2nd Dept. 2008) (tenant of strip mall demonstrated entitlement to summary judgment by establishing it neither owned, controlled or made a special use of parking lot in which plaintiff was injured and accordingly owed no duty to him); Morgan v Chong Kwan Jun, 30 AD3d 386 (2nd Dept. 2006) (tenant's entitled to summary judgment by establishing it did not own, occupy, control or put to special use parking lot nor did they have any right or obligation to maintain that area). Assuming, arguendo, that First Impressions did inform Hotshots when it vacated the property that it would not be providing snow removal services, the lease and sublease still imposed responsibility for doing so on First Impressions.

As for First Impressions cross-claim against Hotshots sounding in indemnification and judgment over, the plaintiff's injury was not the result of any "violation caused or suffered or permitted by the sublessee" Hotshots. Nor did the plaintiff's accident occur "upon or in connection with [Hotshots] use or occupancy of the subleased premises" because the parking lot was not included in the subleased property. Similarly, any liability did not "aris[e] out of the business of sublessee [Hotshots] or the use of the subleased premises by Sublessee" Hotshots. Accordingly, Hotshots is not required by its sublease with First Impressions to indemnify it.Furthermore, while the sublease required that Hotshots procure insurance naming First Impressions as an additional insured i.e., that it "maintain comprehensive public liability . . . insurance coverage," no claim premised upon that obligation has been advanced by First Impressions in its pleading. Accordingly, the complaint and cross-claims against Hotshots are dismissed.

First Impressions has not established its entitlement to summary judgment. Its lease with Adams Fairchild Realty and its sublease with Hotshots imposed responsibility for the parking lot on it. Indeed, it contracted to have the parking lot plowed during the time in question. Finally, contrary to its argument, there is clearly an issue of fact concerning whether it fulfilled its contractual duties on the day in question.

Finally, Leah Martin's role here was limited to her need for assistance. As such, she "merely furnished the condition or occasion for the occurrence of the event rather than one of its causes (citations omitted)." Sheehan v City of New York, 40 NY2d 496, 503 (1976). That is, her act "merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated." Derdiarian v Felix Contr. Corp., supra at p. 315; see, Penovich v Schoeck, 252 AD2d 799 (3rd Dept. 1998) (landlord's failure to [*7]remove ice from roof not proximate cause of plaintiff's injuries when he fell off while climbing down from roof after cleaning office); Quiroz v Leslie Edelman of N.Y, Inc. 224 AD2d 509 (2nd Dept. 1996) (sale of firearm merely condition for occurrence, not the proximate cause); Benaquista v Municipal Housing Authority of City of Schenectady, 212 AD2d 860 (4rd Dept. 1995) (landlord's failure to repair intercom not the proximate cause of plaintiff's injury when she went downstairs to admit visitor). Contrary to the plaintiff's characterization of the events, there is no evidence that Ms. Martin knew that her tires were bald or that she gunned her car and then braked suddenly. In any event, assuming, arguendo, that was the case, a causative nexus would still be lacking.

In conclusion, the complaint and any and all cross-claims against the Martin defendants, the Hotshots defendants, Venezia, Adams Fairchild Realty and Simone Development Company are dismissed. All other motions are denied.

This constitutes the Decision and Order of this Court.

Dated: April 12, 2011

_________________________________________

STEVEN M. JAEGER, A.J.S.C.