I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 68-84, 86-87, 89-85 were read on this motion by Defendant, 6318 Amboy Road, LLC, seeking summary judgment dismissing the complaint pursuant to CPLR § 3212: Notice of Motion and [*2]supporting Affirmation with Memorandum of Law; Statement of Material Facts; Plaintiff's Affirmation in Opposition; and Plaintiff's Response to Statement of Material Facts.

II. Facts

Plaintiff commenced this negligence action to recover for personal injuries sustained on March 10, 2022, when she slipped and fell on a ramp leading from the interior of the premises to the exterior backyard play area. At the time, Plaintiff was employed by the tenant, One of a Kind Child Care. She testified that she slipped on ice and that the absence of a handrail contributed to her fall. Plaintiff suffered fractures of the ankle, tibia, and fibula requiring multiple surgeries.

Defendant, the titled owner of the premises, contends that it was an out-of-possession landlord pursuant to a written lease and bore neither notice of nor responsibility for the alleged defect. Defendant further asserts that the condition was transient, forming only hours before the incident, and that no evidence demonstrates its knowledge of the hazard.

Plaintiff opposes, arguing first that the lease relied upon by Defendant is unauthenticated and therefore inadmissible. Plaintiff further contends that, even if considered, the lease does not eliminate issues of fact regarding Defendant's retained rights of entry, potential structural responsibilities, and control over the premises. Plaintiff argues that the absence of handrails and the defective construction of the ramp constitute structural or design hazards that may implicate landlord liability notwithstanding out-of-possession status.

III. Conclusions of Law

Summary judgment under CPLR § 3212 is a drastic remedy that should be granted only where the movant establishes, prima facie, entitlement to judgment as a matter of law by eliminating all triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Andre v Pomeroy, 35 NY2d 361 [1974]). Once such showing is made, the burden shifts to the non-movant to produce admissible evidence demonstrating a genuine issue requiring trial (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Mere conclusions or speculation are insufficient to defeat the motion (see Raux v City of Utica, 59 AD3d 984 [4th Dept 2009]; Lola Roberts Beauty Salon, Inc. v Leading Ins. Group Ins. Co., Ltd., 160 AD3d 824 [2d Dept 2018]).

An out-of-possession landlord generally is not liable for injuries occurring on leased premises unless it is contractually obligated to repair and maintain, or unless liability is imposed by statute or arises from structural or design defects in violation of specific safety provisions (see Reyes v Morton Williams Associated Supermarkets, Inc., 50 AD3d 496 [1st Dept 2008]; Lugo v Austin-Forest Assoc., 99 AD3d 865 [2d Dept 2012]; Seney v Kee Assoc., 15 AD3d 383 [2d Dept 2005]). Where a landlord has neither created the defect nor retained sufficient control, dismissal is appropriate (see Martin v I Bldg. Co., Inc., 126 AD3d 861 [2d Dept 2015]; McLaughlin v. 22 New Scotland Ave., LLC., 132 AD3d 1190 [3d Dept 2015]; Scott v Bergstol, 11 AD3d 525 [2d Dept 2004]).

On the other hand, a landowner presumptively retains control over its property until it demonstrates by admissible proof that control was unequivocally surrendered (see Gronski v County of Monroe, 18 NY3d 374 [2011]). An unauthenticated lease is inadmissible and cannot serve as the basis for summary judgment (see Byrd v Target, 228 AD3d 1242 [4th Dept 2024]; Dorset v 285 Madison Owner LLC, 214 AD3d 402 [1st Dept 2023]). Even where lease terms [*3]allocate maintenance obligations to a tenant, ambiguity in the language or retained rights of entry may raise triable issues as to the landlord's liability (see Tsokolakyan v Tiffany Mgt., Ltd., 210 AD3d 927 [2d Dept 2022]; Vaughan v Triumphant Church of Jesus Christ, 193 AD3d 1104 [2d Dept 2021]; Wright v Olympia & York Cos. (U.S.A.) Inc., 273 AD2d 24 [1st Dept 2000]).

Here, Defendant predicates its motion on its alleged status as an out-of-possession landlord. Yet the lease submitted in support is unauthenticated. Under controlling precedent, such a document is inadmissible and cannot establish, prima facie, Defendant's claimed lack of control (see Byrd v Target, supra; Dorset v 285 Madison Owner LLC, supra). Counsel's affirmation does not suffice, as it lacks probative value.

Even assuming arguendo that the lease was properly before the Court, the terms are not so clear and unambiguous as to extinguish all issues of fact. The lease provisions preserve rights of reentry and authorize the landlord to perform repairs at the tenant's expense. Case law makes plain that where such rights exist, issues of fact as to retained control and duty may preclude summary judgment (see Gronski, supra; Tsokolakyan, supra). Furthermore, Plaintiff asserts that the absence of a handrail and the defective design of the ramp are structural in nature. Structural defects implicate exceptions to the general rule insulating an out-of-possession landlord (see Reyes, supra; Lugo, supra).

Defendant's reliance on meteorological conditions, while relevant to the transience of ice, does not address the allegations of structural hazard. Nor does it eliminate triable issues of fact concerning the landlord's control, responsibility, or knowledge.

Accordingly, Defendant has not met its initial burden of demonstrating entitlement to judgment as a matter of law. In the absence of such prima facie showing, the sufficiency of Plaintiff's opposition need not be reached (see Alvarez, supra). For the foregoing reasons, Defendant's motion for summary judgment is DENIED.

IV. Decretal Paragraphs

Accordingly it is hereby, ORDERED that Defendant 6318 Amboy Road, LLC's motion for summary judgment pursuant to CPLR § 3212 is DENIED in its entirety; and it is further

ORDERED that the action shall proceed.

This constitutes the Decision and Order of the Court.