This is an action to recover damages for personal injuries allegedly sustained by the plaintiff, on December 29, 2008, when he tripped and fell on a metal ramp in the basement area of a commercial premises located at 110 West 40th Street, in New York [*2]County. The incident occurred while the plaintiff was making a delivery to a restaurant operated by defendant CRT Restaurant Inc. doing business as Croton Reservoir Tavern ("CRT Restaurant"), which, on the date of the accident, had leased the subject premises from defendant owner 110 West 40th Associates incorrectly sued herein as DP 110 West 40th LLC ("110 West 40th Associates") pursuant to a written lease agreement.

Defendant owner, on the foregoing papers, seeks summary judgment dismissing the claims against it on the grounds that it did not owe a duty of care to the injured plaintiff because the demised premises was within the exclusive possession and control of defendant tenant CRT Restaurant and the lease agreement charged defendant tenant with an exclusive obligation to maintain and repair the premises.The plaintiff opposes the motion on the ground that the defendant owner retained control over the premises by virtue of its retention of a right of entry.

Section 4 of the relevant lease pertains to repairs and provides, in pertinent part:

". . . Tenant shall, throughout the term of this lease take good care of the demised premises and the fixtures and appurtenances therein...and at its sole cost and expense, make all structural repairs thereto as and when needed to preserve them in good working order and condition."

Section 13 of the lease provides the owner with a right of entry as follows: "Owner or owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as owner may deem necessary and reasonably desirable to any portion of the building . . .or for the purpose of complying with laws, regulations and other directions of governmental authorities."

It is well settled that "premises liability, as with liability for negligence generally, begins with duty [citations omitted]. The existence and extent of a duty is a question of law" (Alnashmi v. Certified Analytical Group, Inc., ___ AD3d ___, 929 NYS2d 620, 623 [2nd Dept. 2011]). Although landlords who retain control of a demised premises may be liable for defects on the premises (see, Jones v Bartlett, 275 AD2d 956 [4th Dept. 2000], lv. to appeal denied, 96 NY2d 705 [2001]]; see generally, Putnam v Stout, 38 NY2d 607 [1976]), under the circumstances presented herein, the Court finds that defendant owner has established its prima facie entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord who did not retain control over the demised premises and was not contractually obligated to maintain or repair the premises.

In this case, the lease agreement explicitly placed responsibility for maintenance and repair of the demised premises, along with all fixtures and appurtenances, squarely on [*3]defendant tenant CRT Restaurant, and the defendant owner has never endeavored to maintain and repair the subject ramp (cf., Alnashmi v. Certified Analytical Group, Inc., 929 NYS2d 620, supra; Panico v. Jiffy Lube Intl., Inc., 86 AD3d 553 [2011]; see, McElroy v Bernstein, 72 AD3d 757, 758 [2nd Dept.], lv. to appeal denied, 96 NY2d 705 [2010]; Kane v Port Auth. of NY & N.J., 49 AD3d 503, 503-504 [2nd Dept. 2008]; Shrenkel v New York State Dormitory Auth., 266 AD2d 369 [2nd Dept. 1999]).

The affidavit of Mr. Kenneth Walsh, the Director of Operations and managing agent of defendant owner, further establishes that defendant owner did not create the alleged dangerous condition that caused the plaintiff's injuries. The defendant owner also did not own, install, use, or direct the use of, or maintain the ramp in question, thereby further demonstrating that it did not retain control over the area where the accident occurred (see, McElroy v Bernstein, 72 AD3d at 758; Lomedico v Cassillo, 56 AD3d 1271 [2nd Dept. 2008]).

The defendant owner 110 West 40th Associates has thus met its initial burden of establishing that it owed no duty to the plaintiff (see, Schwegler v City of Niagara Falls, 21 AD3d 1268 [4th Dept. 2005]). Moreover - - contrary to the plaintiff's contention - - reservation of a right of entry does not constitute sufficient retention of control over the demises premises to impose liability on the out-of-possession owner in this case where the lease clearly indicates that the tenant is solely responsible for repairs to the demised premises and the owner is not obligated to make repairs and where the evidence demonstrates that the owner did not create the alleged dangerous condition or endeavor to maintain the area in question (cf., Ferro v Burton, 45 AD3d 1454 [4th Dept. 2007]).

In opposition, the plaintiff has failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, that branch of defendant 110 West 40th Associate's motion seeking summary judgment dismissing the plaintiff's complaint against it is granted. The complaint is thus dismissed as to defendant 110 West 40th Associates incorrectly sued herein as DP 110 West 40th LLC.

However, that branch of defendant 110 West 40th Associate's motion that seeks summary judgment in its favor and against defendant CRT Restaurant on its cross claims for common law and contractual indemnification is denied. This request for relief is procedurally improper, as defendant 110 West 40th Associates failed to include it in the Notice of Motion (see, CPLR 2214[a]).

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

November 17, 2011