Plaintiff commenced this action against Shurgard Storage Center and Public Storage (Public) based on claims that on February 5, 2015, in a parking lot owned by Public located at 246 Gold Street, County of Kings (the lot) and in the course of his employment by Vertical Parking Systems (Vertical), plaintiff was struck and injured by a moving vehicle. Public commenced a third- party action against Vertical, for indemnification.

Defendant Public moves for an order for summary judgment dismissing the complaint and in favor of its claims against Vertical for indemnification. Defendant submitted copies of the pleadings, deposition transcripts, affidavits, a copy of a lease, and certified weather records. Although plaintiff objects to the admissibility of the deposition transcripts submitted in support of the motion because they are unsigned and uncertified, the plaintiff did not challenge their accuracy, and the Court may rely on them. Gomez v Shop-Rite of New Greenway, 110 AD3d 483 (1st Dept. 2013).

Based on the record, Vertical leased the subject gated lot from Public to park trucks. Plaintiff was employed by Vertical as a truck rental manager. Plaintiff testified that only Vertical employees had keys to unlock the lot's gate. On the day of the accident, snow and ice had accumulated on the lot. Plaintiff entered a truck on the lot and started it in order to park it in another space. Plaintiff testified that its wheels kept spinning on ice and had no traction. His co-worker "Diguens" was dispatched to assist the plaintiff. Plaintiff and Diguens attached one end of a chain to the bumper of a truck operated by Diguens, and the other to the truck plaintiff was trying to move. Plaintiff put his truck in neutral and exited the vehicle. Diguens entered his [*2]truck and put it in reverse but the truck did not move. Plaintiff positioned himself between the two vehicles and unwrapped the chain from one of the bumpers. Diguens was seated in his truck. As plaintiff tried to re-attach the chain to the bumper, Diguens' truck struck plaintiff's body. Plaintiff testified that the truck slid across the ice and pinned him between the two vehicles. Plaintiff sustained injuries to his leg.

Plaintiff testified that on the date of the incident, unremoved snow and ice had accumulated on the ground in the lot. Plaintiff claims that Public's failure to remove snow and ice by failing to provide proper drainage for the lot created a dangerous icy condition that caused plaintiff's injuries.

However, Vertical admitted that Public was an out of possession landlord. Furthermore, according to the commercial lease agreement between the parties, Vertical, as the tenant, at its sole cost and expense was responsible for the repairs and maintenance of the lot. Plaintiff testified that the lot was gated and only Vertical employees had keys. In addition, by his affidavit, defendant's expert David Behnken opined that the condition of the lot on the date of the incident was due to a failure to remove snow and ice and not improper drainage. He attested to a reasonable degree of engineering certainty that the drainage in the lot was proper, and there were no statutory violations of the building code.

Defendant established prima facie that it was not responsible for the dangerous condition alleged to have existed at the lot. see Syrko v Jertom, Inc., 140 AD3d 473 (1st Dept. 2016). An out of possession owner is not liable for injuries sustained on the premises unless a duty to maintain the premises in a reasonably safe condition "is imposed by statute or assumed by contract or a course of conduct" Alnashmi v Certified Analytical Group Inc, 89 AD3d 10 (2nd Dept. 2011). The defendant submitted proof that it did not occupy or retain control of the lot and demonstrated that it violated no contractual duty to maintain the premises, or any duty imposed by statute. Defendant has established its entitlement to summary judgment.

In opposition, plaintiff submitted Michael Simon's affidavit, Google photos, a copy of a deed and a transcript of Edward Feliciano's deposition testimony. Although plaintiff's attorney refers to him as an expert, no documentation of Mr. Simon's competence to opine was submitted. Plaintiff's attempt to remedy their omission by sending a copy of Mr. Simon's curriculum vitae after defendant filed and served their reply is tantamount to a sur reply without leave of court. Plaintiff failed to submit any admissible evidence to raise an issue of fact as to whether defendant violated a duty to maintain the lot. Plaintiff's claims of actual and constructive notice of the condition alleged are not material since defendant had no duty to maintain the premises. See Podel v GlimmerFive, LLC, 117 AD3d 579 (1st Dept 2014).

As to indemnification, Public established that the lease between the parties included an indemnification clause wherein Vertical had a duty to indemnify Public, and that although Vertical was insured, it did not include Public as an additional insured. However, the complaint is dismissed, hence the branch of the motion seeking indemnification is denied as moot.

ACCORDINGLY, it is hereby

ORDERED, the complaint is dismissed; and it is further

ORDERED, that branch of the motion seeking indemnification is denied as moot; and it is further

ORDERED, defendant will serve a copy of this decision and order upon the parties within twenty (20) days of notice of entry.

This is the decision and order of the Court.