Myers-Skinner v City of New York (2012 NY Slip Op 00304)

Myers-Skinner v City of New York

2012 NY Slip Op 00304 [91 AD3d 527]

January 19, 2012

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 29, 2012

Jacqueline Myers-Skinner, Plaintiff,
v
City of New York et al., Defendants. 4201 Webster Corp., Third-Party Plaintiff-Respondent, v ExxonMobil Oil Corporation, Third-Party Defendant-Appellant.

—[*1] McCusker, Anselmi, Rosen & Carvelli, P.C., New York (Alicyn B. Craig of counsel), for appellant.

Francis M. DeCaro, Bronx, for respondent.

Orders, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 12, 2011 and April 1, 2011, which, to the extent appealed from as limited by the briefs, denied ExxonMobil's motion for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, the motion granted, and the third-party complaint dismissed. The Clerk is directed to enter judgment accordingly.

Under the terms of the applicable lease, lessee ExxonMobil owed lessor 4201 Webster no duty to maintain the sidewalk where plaintiff fell (cf. Collado v Cruz, 81 AD3d 542 [2011]), and the record refutes 4201 Webster's argument that it was physically excluded from the property. The sidewalk where plaintiff fell was not under ExxonMobil's control. Any lease obligation to [*2]maintain it was not in effect insofar as the parties were still in the preliminary period.

We have considered the remaining arguments and find them unavailing. Concur—Andrias, J.P., Sweeny, Moskowitz, Renwick and Freedman, JJ.