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JOAN BERADO, et al., appellants, v. CITY OF MOUNT VERNON, et al., defendants, WALDBAUM'S INC., respondent.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Joan Berado was injured when she tripped upon a crack, break, or gap and the adjacent uneven surface in the concrete roadway of a parking facility built, operated, maintained, and repaired by the City of Mount Vernon. The parking facility was built in 1974 pursuant to a lease with a predecessor in interest of the defendant Waldbaum's Inc. (hereinafter Waldbaum's). Waldbaum's subsequently built and operated a store on property adjacent to the parking facility, but closed the store in 1980 and ultimately leased the building to Ark Drug. Ark Drug occupied the building on the date of the incident.

It is well settled that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair unsafe conditions ( see, Stark v. Port Auth. of N.Y. N.J., 224 A.D.2d 681). The record reveals that Waldbaum's was not involved in the daily operation of the parking facility or contractually obligated to repair unsafe conditions. Furthermore, there are no material issues of fact as to whether Waldbaum's was negligent in any manner during the original construction of the parking facility. Therefore, the court properly granted Waldbaum's motion for summary judgment ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557; Gilbert v. 4905 Ave. D Realty, 224 A.D.2d 659).

The plaintiffs' request for further discovery is without merit ( see, Carrington v. City of New York, 201 A.D.2d 525).

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BERADO v. CITY OF MOUNT VERNON
(Jun 21, 1999)